Often, an Illinois divorce lawyer will ask the court to do something and then, instead of citing the law the divorce lawyer will remark, “Well, we’re a court of equity and this is the right thing to do.”
This phrase “a court of equity” harkens back to the old division of courts where courts were divided into courts of law and courts of equity.
A court of equity is “a court which has jurisdiction in equity, which administers justice and decides controversies in accordance with the rules, principles, and precedents of equity, and which follows the forms and procedure of chancery; as distinguished from a court having the jurisdiction, rules, principles, and practice of the common law.” Black’s Law Dictionary (11th ed. 2019)
Vaguely, courts of equity would order people to do things, while courts of law would order monetary damages. Courts of equity would apply loosey-goosey “equitable principles” while courts of law would follow the statute and the common law.
“A court of equity can always shape its remedy to meet the demands of justice in every case, however peculiar.” Shatz v. Paul, 129 NE 2d 348 – Ill: Appellate Court, 1st Dist., 2nd Div. 1955
Lawyers who do not know the law love the concept of a court of equity. Equity is pure factual argument buttressed by nothing but emotional pleas for fairness.
Too bad for those lawyers. Equity courts no longer exist in Illinois.
“Under the 1970 Illinois Constitution, the distinction between courts of law and equity has been abolished, so that our court system is now a unified one with original jurisdiction of justiciable matters.” In re Marriage of Isaacs, 260 Ill. App. 3d 423, 427 (Ill. App. Ct. 1994)
In Illinois, divorce court is governed by the Illinois Marriage and Dissolution Act which “was enacted to create a uniform law governing domestic relations.” In re Marriage of Thompson, 79 Ill. App. 3d 310, 313 (1979)
“[A] trial court’s authority to act in dissolution proceedings is conferred only by statute” and “[t]he trial court may not rely upon its general equity powers.” In re Marriage of Ignatius, 338 Ill. App. 3d 652, 657 (2003)
Only the statute and the case law should be considered when an Illinois divorce court makes a decision.
“The dissolution of marriage is entirely statutory in origin and nature, and courts…must exercise their powers within the limit of the Act.” In re Marriage of Blum and Koster, 377 Ill. App. 3d 509, 526 (2007) (rev’d on other grounds)
Equity courts have been abolished in Illinois which made Illinois divorce courts consecrated as courts beholden to the Illinois Marriage and Dissolution of Marriage Act. Despite this, Illinois divorce courts can issue orders on what are, in effect, pure equitable principles.
The Illinois Marriage and Dissolution of Marriage Act “shall be liberally construed” to “promote its underlying purposes.” 750 ILCS 5/102
Illinois divorce courts are given extreme flexibility before issuing the final divorce orders. Every decision by an Illinois divorce court before the divorce is finalized is appropriate if merely deemed “appropriate.”
“Either party may petition or move for…other appropriate temporary relief” 750 ILCS 5/501” 750 ILCS 5/501
The logic behind a divorce court having the broad power to grant “appropriate temporary relief” is that the decision will eventually be extinguished by the final judgment for dissolution and accounted for therein under the law.
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)
Most temporary orders cannot even be appealed before a final order is entered.
“Temporary orders certainly may not be appealed immediately, on an interlocutory basis, before the entry of a final order. Once the final order is entered it must be assumed that the trial court has thereby adjusted for any inequity in its temporary orders. On appeal we should consider whether the trial court’s final order, its overall resolution of the issues, is erroneous, not whether some part thereof is erroneous” (citations omitted); In re Marriage of King, 336 Ill.App.3d 83, 88, 270 Ill.Dec. 540, 783 N.E.2d 115 (2002)
Finally, courts do have equitable powers to enforce their own orders.
“[In regards to enforcement and contempt,] [i]rrespective of empowering statutes, a court retains its traditional equitable powers. Such inherent equitable power, derived from the historic power of equity courts, cannot be taken away or abridged by the legislature.” Smithberg v. Illinois Mun. Retirement Fund, 735 NE 2d 560 – Ill: Supreme Court 2000
While a divorce court is not a court of equity, the court retains equitable powers remain if the court has jurisdiction.
“Equitable powers” generally refers to a court’s authority to award a particular remedy in a case properly before it.” Kinn v. Prairie Farms/Muller Pinehurst, 859 NE 2d 99 – Ill: Appellate Court, 2nd Dist. 2006
Illinois divorce courts can and will do what they believe is fair even if that decision is not explicitly authorized by a statute or interpretation of the statute (case law). However, sooner or later, the divorce will be finalized and the flexibility of temporary orders will be extinguished by a final judgment of dissolution of marriage which can only be determined by applying the Iaw.
If you would like to have a lawyer who knows the law and knows when the law must be applied and when the court can simply make decisions based on fairness, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney today.