Temporary Relief — Child Support, Maintenance, and More
by Wes Cowell; updated 14 December 2015
Once a case is filed, some litigants use financial leverage to bully a spouse into an unfavorable settlement. Illinois courts thwart such tactics by granting "temporary relief." Court orders for "temporary relief" spell out who-has-to-pay-what while the case is pending, ensures that a financially savvy spouse cannot hide assets, and keeps both spouses on a level playing field. The judge may even order a spouse to sell or borrow against property to make sure things stay fair. Need advice? Call, leave your info, or schedule a consult.
Automatic Dissolution Action Stay: A "stay" is a court order that stops action. An 'automatic stay" is a court order that goes into effect automatically without anyone having to go to court; indeed, there isn't even a piece of paper in the file -- it's just an automatic order that pops into being by operation of law. Under Illinois' divorce law, once a Praceipe or Petition has been served with a Summons on the Respondent -- or the Respondent files his or her Appearance -- a "stay" automatically is placed on both parties prohibiting them from:
physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other spouse or the minor children; 750 ILCS 5/501.1(a)(1)
removing minor children from Illinois. This prohibition applies to "any minor child of either party;" meaning it covers children born to or adopted by only one spouse in a blended or same-sex marriage. 750 ILCS 5/501.1(a)(2).
The "Dissolution Action Stay" is automatic. Don't file a request with the court or go see the judge. Once the Respondent is served with process or files his or her Appearance, the stay is in place.
Status Quo ante Orders: Judges like to maintain the status quo ante. They like to go back to the last peaceful status. When the couple was getting along, who was paying the bills, who was covered on whose insurance, who drove which car, who paid for the kids' daycare and extra-curricular activities, etc.? What was the parenting schedule like? These items are the meat-and-potatoes of Temporary Relief petitions. Judges almost always place the parties in the positions they occupied in the last peaceful status.
Preserving Assets -- Temporary Restraining Orders and Preliminary Injunctions: Temporary Restraining Orders may be obtained without notifying the other side. Notice to the other party is usually required, but may be waived by the court if "irreparable injury" would result from notifying the Respondent or in the delay caused by allowing the Respondent to respond. Infinite circumstances warrant proceeding without notice, but lawyers mostly use this tactic where notifying the Respondent would defeat the purpose. Someitmes, if you tell the other side "I'm going to court next Thursday to freeze the bank accounts," you'll find the bank accounts drained and closed by Wednesday morning. There are endless examples. When in doubt, play it safe and close the door while the horses are still in the barn: ask for the TRO first and give notice, later.
T.R.O.s last no more than ten days and then must be re-heard by the court. The TRO freezes things while the Respondent is afforded time to respond and appear in court to argue against any further injunction. That second hearing may result in a permanent injunction that will last for the duration of the case or it may produce a "Preliminary Injunction." A Preliminary Injunction lasts no more than 30 days before the matter must go back to court for the judge to decide how to proceed.
Enjoinder Against Encumbering, Concealing, or Disposing of Property: Sometimes a divorcing spouse will try to hide assets, will borrow a huge amount against marital property, or will just sell property. The court has the power to prevent this, but it doesn't happen automatically. Call my office to protect the marital assets before they're spirited away.
Ordinary Living Expenses / Ordinary Course of Business: Most injunctions prohibit only major transactions; like, taking out a mortgage on the house, selling the family business to a foreign investor, or transferring all the retirement funds to Panama. Injunctions usually allow the parties to continue with routine, day-to-day transactions. This practice follows Illinois' prior law, under which courts could not prohibit expenditures made "in the ordinary course of business or for the necessities of life." In re: Marriage of DeRosa, 115 Ill.App.3d 774, 451 N.E.2d 13, 71 Ill.Dec. 525 (1st Dist., 1983).
Requiring Notice: Injunctions that prohibit financial activity except "in the ordinary course of business and for necessities of life" can include a back-up. Illinois law says you can include language that requires the parties to give notice to each other of any proposed extraordinary expenditures. The notice requirement is not automatic -- ask that it be included in the injunction.
Receivers-- Curtailing "Ordinary": The court has power to curtail all financial activities -- even those done in the ordinary course of business or for life's necessities. The court can set up a system to capture every penny in a marriage and disburse funds as the court sees fit. Under Illinois new (2016) law the court may restrict all financial activity if the injunction "enable[s] the parties to pay their personal and business expenses . . . ." The court may even appoint "appropriate professionals to assist the court pursuant to subsection (l) of Section 503 (note to reader: that's 750 ILCS 5/503 (l) -- L as in Lima -- it says such professionals are subject to subpoena power, may be called to testify, and their fees may be subjected to a reasonableness hearing and allocated between the parties) to administer the payment and accounting of such living and business expenses." 750 ILCS 5/501(a)(2)(i).
Before the 2016 change in the law, divorcing spouses had many loopholes through which they could hide and protect assets. The aggrieved spouse could only hope to learn of the malfeasance and seek to right the wrong after the fact by a claim of dissipation. Thanks to the 2016 change, the lawyers can close the barn door before the horses get out.
Enjoinder Against Removal of Children: Although this is covered by the Automatic Dissolution Action Stay, above, you can still run in to court, make the judge aware of your concerns, and obtain a court order that specifically declares that neither party may remove the children and spells out any exceptions (for vacation travel and such).
Enjoinder Against Striking or Interfering with Personal Liberty: This is a no brainer. This is covered by the Automatic Dissolution Action Stay, too (plus, it's a crime). Interfering with personal liberty means threatening or coercing another "to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or her has a right to engage." This is the "leave-me-alone" law.
Enjoinder Against Other Acts: Got a problem that needs addressing? This catch-all allows the court to compel your spouse to do -- or not do -- certain, important things. Call me, the catch-all covers a lot.
Selling Assets / Borrowing Money: Before the 2016 change in the law, divorce judges were powerless to sell off marital assets during the divorce case. A judge could only order the sale of marital assets as part of the final judgment. Marital property, after all, must be valued as of the date of the trial. 750 ILCS 5/503(f) and In re: Marriage of Mathis, 2012 IL 113496, 986 N.E.2d 1139, 369 Ill.Dec. 503. An exception exists for real estate held in joint tenancy: the court could (and still can) order the sale of such real estate under a "Petition for Partition" (750 ILCS 5/514) but that's beside the point.
Under the new Temporary Relief statute, 750 ILCS 5/501, the court is empowered to preserve the marital estate through the judicious exploitation of resources. The court may force the parties to
sell unaffordable assets,
convert non-liquid assets into cash, and
borrow against equity.
The law says:
750 ILCS 5/501: Temporary Relief
Temporary Relief. In all proceedings under this Act, temporary relief shall be as follows:
(a) Either party may petition or move for
. . .
(3) 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.
Temporary Maintenance and / or Child Support: Temporary Maintenance and Child Support are to be dealt with summarily based on the parenting schedule, financial affidavits, tax returns, pay stubs, banking statements and other relevant documents. 750 ILCS 5/501(a). Note that the maintenance formula and child support guidlines do not apply in resolving issues of temporary relief. Courts instead consider the facts and circumstances and base their recommendations and rulings on each party's, and the children's, needs and situation. The financial documents are exchanged between the lawyers, shared with the judge, and then are bundled up in each lawyer's file -- they are not filed with the court. This protects against identity theft and discourages prying eyes. That means you shouldn't have to wait long for a hearing . . . because there is no hearing. Each side submits the documents to the court and the court rules. Sometimes a hearing may be necessary, but usually the temporary award should be made summarily.
Temporary Attorney's Fees: Lawyers and judges use the terms "interim attorney's fees" and "interim fee award." These matters are supposed to be summarily decided by the court. 750 ILCS 5/501(c-1). There should be no long waits for lengthy hearings. The court is supposed to consider only the affidavits of each side. The financial affidavits are to include tax returns, pay stubs, banking statements and other relevant documents. 750 ILCS 505/1(a). Those financial documents are exchanged between the lawyers, shared with the judge, and are then bundled up in each lawyer's file -- they are not filed with the court. This protects against identity theft and discourages prying eyes. The law says these matters are to be scheduled and decided "expeditiously."
I represent a lot of clients who have no money and all the assets are held and controlled by the other side. I explain to the judge that, given the circumstances, the bread-winner / money manager of the family must pay the attorney's fees for both sides. It happens every day.
Temporary Eviction: Lawyers and judges call it "temporary exclusive possession of the marital residence." The court may evict one spouse where the living environment at home has so deteriorated that continued occupancy of the marital home by both spouses jeopardizes the physical or mental well-being of either spouse or the children. Illinois law changed in 2016 to make these rulings non-appealable.
Misrepresentation: The law provides stiff penalties for litigants who fudge on the financial affidavits in Temporary Relief matters. When a lawyer uncovers an inconsistency in a financial affidavit (or the supporting documents), the court conducts a hearing. If the court concludes the affidavits were prepared with a reckless disregard for the truth intending to deceive, the court may level heavy penalties and sanctions. The law specifically allows the recovery of attorney's fees for the aggrieved party. Beyond that, however, a deceptive litigant should expect an adjustment to the final property allocation as a sanction for trying to mislead the court.
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