Legal update: using the Non-support Punishment Act

Effective October 1, 1999, the State of Illinois passed legislation making failure to pay child support a felony. Under 750 ILCS 16/1-16/70, a person can be charged under the criminal statutes for not paying their child support when the person is in arrears over $20,000, or has failed to voluntarily pay support for one year. The new law states:

"750 ILCS 16/15

(a) A person commits the offense of failure to support when he or she:

(4) willfully fails to pay a support obligation required under a court or administrative order for support, if the obligation has remained unpaid for a period longer than one year, or is in arrears in an amount greater than $20,000 and the person has the ability to provide the support."

I interviewed Assistant State's Attorney Dermon Jackson to discuss how the State proceeds with felony prosecutions under the new Act. Asst. Jackson provided a press release describing the successful prosecution of Robert E. Oravec, the first person in Cook County to be prosecuted under the new law. Oravec was alleged to have owed more than $46,000 for the support of his two teenage children. On April 27, 2000, a grand jury indicted Oravec on two felony counts of failure to support, a Class 4 felony. According to the news release, Oravec rented a home in Kildeer, Illinois for $1,700 a month and owned two cars, a Mercedes and a Jaguar. In addition to the monthly rental, Oravec paid a $1,700 rental deposit along with an additional deposit of $1,700 for two large dogs.

I questioned Asst. Jackson about why Cook County chose to prosecute Oravec, particularly in light of the many other parents who have failed to pay that have yet to be prosecuted. "One reason was Oravec's ability to pay and his refusal to do so," said Jackson. "Oravec earned more than $100,000 a year and even though he was ordered to pay, he would not."

Asst. Jackson stated that the State's Attorney's Office is more interested in getting support for the minor children than prosecuting the parent under the new felony law. "The felony prosecution is not a substitute for the civil process, " Jackson said. Only after all civil remedies are exhausted will the State intervene to prosecute a non-paying parent. Prosecuting a person and leaving the parent with a felony record can do more harm than good. A person with a felony record has a harder time securing employment, and no employment means no money to pay support. But in Orvace's case, all the civil remedies had been exhausted, leaving the State no choice but to prosecute under the new law.

This logic kept the State from prosecuting a similar case that I handled. In December 1999, I accepted a pro bono case for a client "Peg," who had been married to a doctor, "Joe." Joe refused to pay support for years.

I have worked closely with the State, in hopes that it would prosecute Joe under the new felony law. Although Joe's last tax return revealed that he made $100,000, he owes $65,000 in child support. No civil remedy has succeeded in making him pay. Because Joe is a doctor and, criminal prosecution could result in the loss of his medical license and leave him with no ability to pay. This would not be in the child's best interest.

It was hard to know which avenue to pursue. We could decide to quit fighting on the civil end and ask the State to prosecute. If he pled or was found guilty, Joe would lose his medical license, and although we would feel vindicated, we would not be any wealthier for our efforts. After several consultations with my client, we decided to forcefully pursue the State in the hopes it would prosecute Joe under the new law. The final outcome of the case proved that the new Non-support Act is a valuable tool in dealing with those parents not paying support. Faced with the prospect of a felony conviction, Joe finally decided to begin payments. Happily, my client is now receiving support. She uses the money to fund her son's college expenses.