Legal Memorandum: Failure to comply with court order under Illinois Marriage and Dissolution of Marriage Act and associated costs

Issue: Under Illinois law, when is a party entitled to costs and reasonable attorneys’ fees for failure to comply with a court order under the Illinois Marriage and Dissolution of Marriage Act?

Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act states that "[i]n every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party." [statref]750 ILCS 5/508(b) (West 2012)[/statref]. Section 508(b) of the Act is mandatory, not discretionary, and does not allow for the court to exercise its discretion as to payment if the defaulting party’s conduct was without cause or justification. In re Marriage of Putzler, 2013 IL App. (2d) 120551, ¶ 37; In re Marriage of Walters, 238 Ill.App.3d 1086, 1098 (1992). If it so finds, attorney fees must be imposed. In re Marriage of Putzler, 2013 IL App. (2d) 120551, ¶ 37.

The original burden of showing that the alleged contemnor violated a court order is on the one making the allegation. In re Marriage of Charous, 368 Ill.App.3d 99, 107 (2006).  After that burden is met, the burden shifts to the alleged contemnor to show that the noncompliance was not willful and that she had a valid excuse for failing to follow the court’s order. Id. at 107-08.

Finding a party in contempt for failing to comply with a court order implies a finding that the failure to comply was without cause or justification […]