Every divorce case in Illinois starts the same way: a Petition For Dissolution of Marriage is filed, a Summons is served on the Respondent, the petition for dissolution of Marriage is answered by the Respondent…and then eventually the case is finalized when a judge enters a judgment for dissolution of marriage. But, a lot can happen in between. What happens in between are called temporary motion and temporary orders. So, how do you file a motion for temporary relief in an Illinois divorce case?
Illinois family law courts are always busy. The courts are required to finalize divorces and deal with the myriad of issues that arise in the middle of the divorce process (and they always do arise). The court will not resolve these problems for you when you cannot come to an agreement with your spouse. But, you must bring your issues to the court’s attention and ask the court to make a decision.
If you do not request the court to resolve a temporary issue via a summary or evidentiary hearing, the issue may be waived. In re Marriage of Shedbalkar, 419 N.E.2d 409
In the end it is the judge assigned to your case that controls how these temporary motions will be decided. The courts must balance justice (getting what you want done) with judicial efficiency (getting your case closed in a reasonable amount of time).
“[T]he trial court possesses the inherent authority to control its own docket and the course of litigation, including the authority to prevent undue delay in the disposition of cases caused by abuse of litigation process.” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)
There are a variety of temporary motions and petitions (a misnomer that I will address later) that can be filed in an Illinois divorce.
Temporary Motion for Child Support And/Or Maintenance
In Illinois, temporary relief is governed by 750 ILCS 5/501 which states:
“Either party may petition or move for
- Temporary maintenance or temporary support, accompanied by an affidavit , accompanied by an affidavit as to the factual basis for the relief requested.” 750 ILCS 501(a)(1)
So, a temporary motion for temporary support is probably the most common type of temporary motion in a family law case.
The affidavit the statute is referring to is the Illinois statewide affidavit for family and divorce cases which can be found here.
These temporary motions are then decided on a summary basis as described later in the statute.
“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation, except an evidentiary hearing may be held upon a showing of good cause.” 750 ILCS 5/501
“Summary hearing” means the judge just reviews the motion and the attached affidavit and effectively does the math to determine child support and/or maintenance based on these documents if no one objects.
If someone does object to the summary hearing, then an evidentiary hearing is required. An evidentiary hearing is what you see in the movies where people are put on the stand to testify and authenticate exhibits which are entered into evidence. Evidentiary hearings take time.
So, you can ask for a summary hearing and get that hearing heard next week (or even that very moment) or you can ask for an evidentiary hearing and get the judge to block off an hour of his or her time two months from now. Most divorce litigants take the summary hearing for obvious reasons.
Summary hearings rely solely upon the financial affidavit and its supporting documents. If someone falsifies or even omits information on these documents there are grave consequences.
“If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court shall impose significant penalties and sanctions including, but not limited to, costs and attorney’s fees resulting from the improper representation.” 750 ILCS 5/501
Temporary Motions For Injunctive Relief In An Illinois Divorce
Apart from temporary motions for support, the other common temporary is a motion for a restraining order or preliminary injunction
“a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:” 750 ILCS 5/501(b)
“A restraining order” as it implies prevents someone from doing something.
“injunctive relief” is almost the exact same meaning. It prevents you from doing something rather than forces you to do something. The difference between the two concepts is effectively non-existent but it underscores a concept: “it is easier to ask a court for a person NOT to do something than it is to ask a court to FORCE a person to do something.”
The statute then outlines what kind of preliminary restraining orders and injunctive relief it expects litigants to ask for.
“restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued; however, an order need not include an exception for transferring, encumbering, or otherwise disposing of property in the usual course of business or for the necessities of life if the court enters appropriate orders that enable the parties to pay their necessary personal and business expenses including, but not limited to, appropriate professionals to assist the court pursuant to subsection (l) of Section 503 to administer the payment and accounting of such living and business expenses;” 750 ILCS 5/501(a)(2)(i)
This basically keeps anyone from moving any money during the pendency of a divorce. You would think this would be automatic but, in Illinois, you have to ask for it.
You can also ask for a temporary order to keep kids from moving out of the state and to keep a spouse from hitting you or your children.
“(ii) enjoining a party from removing a child from the jurisdiction of the court for more than 14 days;
(iii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child;” 750 ILCS 5/501(a)(2)
Finally, there is a big catch-all for any kind of temporary relief you’d like which is definitely not protective and actively forces the other party to do something.
“other appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 ILCS 5/501(a)(3)
This part of the statute goes beyond child support and maintenance and mentioned above because child support and maintenance are based on income. This part of the statute ignores income and lets you sell or borrow assets in order to maintain expenses.
Notice And Motions For Temporary Relief In An Illinois Divorce Case
The number one rule in civil procedure is that you have to let the other side know what you’re doing in court. This is called “notice.”
Sometimes, however, it’s impractical to provide notice and you can go into court on an emergency motion for temporary relief under the statute. The court can make a decision even in the absence of proper notice if an irreparable harm or injury will occur.
“The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” 750 ILCS 5/501(b)
Interim Attorney’s Fees In An Illinois Divorce
One of the contemplated temporary motions under the Illinois statute allows one party to ask the other party to pay their attorneys fees, both incurred and expected, immediately.
“the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation” 750 ILCS 5/501(c-1)(3)
These fees are awarded on a summary basis using the same analysis as applied to temporary motions for child support and/or maintenance.
In my experience, an award of interim attorneys fees is almost never greater than what a party has already paid their own attorneys.
Temporary Use Of The Marital Home During A Divorce
If one party to a divorce won’t move out of what was considered the marital home, it is not necessary to evict that party or file an order of protection to remove them.
The courts recognize that it is not healthy for either party’s physical, mental or emotional health to remain in the same house unnecessarily.
“Allocation of use of marital residence. Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse, by eviction from, or restoration of, the marital residence, until the final determination” 750 ILCS 5/501(c-2)
This is NOT done on a summary basis. Kicking someone out of their home is a big deal and requires a full evidentiary hearing. Evidentiary hearings take time and must be scheduled weeks in advance. So, don’t expect to evict your spouse from the house anytime soon.
Temporary Custody/Possession Of Pets In An Illinois Divorce
In Illinois, you can get custody of a pet the same way you can get custody of a child…by considering the best interests of the pet.
While there are detailed considerations in awarding a pet to a divorced party per the final judgment, on a temporary basis, there is nothing more to do than ask for temporary possession of that animal.
“Companion animals. Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.” 750 ILCS 5/501(f)
What Happens To A Temporary Order Once the Final Judgment of Dissolution Is Entered In An Illinois Divorce?
All of these temporary motions create temporary orders. Temporary orders are TEMPORARY. They can be changed by another temporary motion.
“(d) A temporary order entered under this Section:
(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)
Temporary orders are not be considered as evidence in the final hearing which enters the divorce and determines everyone’s final rights in the divorce.
“A temporary order “does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;” 750 ILCS 5/501(d)(1)
Temporary orders are automatically extinguished when the final divorce is granted.
A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)
Please note that while temporary orders are temporary until the divorce is entered, you can use all of the same motions for a post-divorce decree matter such as motion to enforce an order or a motion to modify an order. Those subsequent orders are effectively temporary as well. But, post-divorce decree, there is no event which can automatically extinguish or terminate a post-divorce decree order.
Temporary Motions vs. Pleadings In An Illinois Divorce
Temporary relief is almost unique to family law and divorce cases. In any other kind of civil action you can’t ask for “just a little bit right now.” In a personal injury case, the injured party cannot say, “Well, I’m pretty badly hurt and we don’t know whose fault it is yet but can I have just a little bit of money until we figure it all out?”
Because of temporary relief’s strangely unique nature to family law, attorneys who don’t practice family law regularly file the wrong motions when trying to get something for their divorce clients on a temporary basis. Worse yet, they answer motions for temporary relief the wrong way.
Temporary motions are motions NOT pleadings. Confusingly, family attorneys often label both pleadings and motions as “Petitions.” For clarity’s sake, pleadings should be titled “petitions” and motions should be titled “motions.” All motions, are, effectively, temporary motions. But, you will always find lots of petitions for temporary relief filed in the Cook County court systems.
A pleading is a cause of action created by statute. For example, to get a divorce in Illinois, a pleading must state facts that satisfy all of the elements of the statute 750 ILCS 5/401 titled “Dissolution of Marriage.”
The pleading for a petition for dissolution of marriage (a divorce) must therefore state the elements:
- One spouse must be a resident of Illinois for 90 days.
- Irreconcilable differences have arisen between the spouses.
Most people put in other details that are helpful such as the date of the marriage, if there are kids, if there are assets to divide, etc. But, to get just a divorce, you only need to allege those two items as facts.
To answer a pleading only requires that you admit or deny the fact alleged by the pleading. This is crucial because you are swearing on oath as to the veracity of the allegations and will be held to those facts.
Temporary motions do not operate in this checklist-like way at all. But, lots of lawyers in Cook County’s family law courts seem to think that answering “admit” or “deny” is enough for a motion.
A motion requires a memorandum of law and an affidavit and verification as to the facts to which the law shall be applied. A motion is more subtle than a pleading because you’re not asking the court to find facts true that lead to an inevitable result such as “90 days residency + irreconcilable differences = Illinois divorce.”
A motion states that certain things have happened which justice would infer that a court could do other certain things within that courts power. The court has broad powers when it comes to motions, so the motions need argue for what the motion is requesting the court to do.
Conversely, motions need to be answered with similarly structured answers in which the law is applied to a set of attested-to facts. A series of bullet points saying “admit” and/or “deny” do nothing to educate the judge as to your position.
If you’re looking to get immediate results in your pending or ongoing Illinois divorce case, contact my Chicago, Illinois family law firm to learn more about all of your options after speaking with an experienced Chicago divorce attorney.