You do not always have to wait until the divorce case goes to trial to get some relief. The court can enter temporary orders regarding what had been referred to as child custody, visitation (now known as allocation of parenting time and parental responsibilities) as well as child support and maintenance. Although these orders are temporary they can continue until the case is completed or the court makes some other order on the issue.
Help While Court Proceedings are Pending
What types of temporary relief are available?
You can ask for temporary parental responsibility (child custody), child support or maintenance. You can also seek restraining orders and interim attorney fees.
I am currently in:
- Divorce Proceedings
- Paternity Proceedings
- Proceedings to modify maintenance, child support or child custody (allocation of parenting time or responsibility)…
Can I obtain relief before the conclusion of the proceedings?
Yes. Illinois law allows for temporary relief in each of the above situations.
How long does temporary relief last?
Temporary relief continues until the end of the case unless the court terminates or modifies the relief.
Can the court modify/change temporary orders?
Do temporary orders affect the final judgment in a case?
No. Temporary financial orders are not prejudicial, that is they should not impact on the judge’s final order. Generally, the court is not supposed to consider a temporary order in its final disposition of the case. However, temporary orders allocating parenting time may have an impact on the final determination.
How does the court decide how parenting time (formerly called “custody and visitation”) on a temporary basis?
The court decide temporary issues regarding parenting time and decision making in the same way that it decides what used to be referred to as “permanent custody.” (Although nothing is necessarily permanent about a award allocating parenting time or parental decision making. The best interest of the child is paramount. Either party can request a hearing to present evidence. If neither party wants a hearing, the court may decide solely on the affidavits of the parties.
How quickly does current Illinois law provide that a parenting plan should be submitted?
Illinois law provides:
All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan. The time period for filing a parenting plan may be extended by the court for good cause shown. If no appearance has been filed by the respondent, no parenting plan is required unless ordered by the court.
This is an issue that is fraught with issues and it is essential that one consult with your lawyer regarding the timing of a parenting plan. The first step, however, that is generally required in any Illinois divorce and paternity cases is mediation. The current law creates an added sense of urgency to commencing mediation early if an agreement regarding parenting time cannot be reached readily between the parties and/or their lawyers.
On what basis does a court set temporary child support?
The court sets temporary child support on the same basis as final child support. Under the 2016 child support guidelines, the court orders the non-residential parent (parent not awarded what was formerly called custody) to pay a percent of net income based on guideline figures. These guidelines change effective July 1, 2017.
Often the amount of child support and the income of the parent who has primary parenting time are not sufficient to pay the bills. In such a case the court may order, in addition to child support, that the non-custodial parent also pays the mortgage, etc., on a temporary basis. This issue is complex and should be discussed in detail with your lawyer.
How does a court set temporary maintenance/alimony?
The court considers a variety of factors including age, income, length of marriage, and health. After considering these factors the court will award maintenance in an amount it deems just. The court may also consider and apply the Illinois maintenance guidelines.
What is an injunction/temporary restraining order?
An injunction is a court order requiring someone to do, not do, or stop doing something. Injunctions are sometimes called restraining orders. Temporary restraining orders are injunctions lasting for ten days or less and are usually not granted without notice to the opposing party. (There may be unusual situations discussed immediately below in which what is called an ex-parte TRO can be entered and advice from your divorce lawyer is essential in these situations).
Obtaining an Injunction without Notice: I’m afraid if I tell my spouse I am seeking an injunction she will try to dispose of assets, or will otherwise harm me before the hearing. Can I obtain an injunction without notifying the opposing party?
Yes. The court will enter a temporary restraining order without notice to the opposing party if you also meet the requirements for an injunction. The temporary restraining order lasts only ten days and then the other side is entitled to a hearing. Illinois divorce law provides:
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.
Can I receive attorney fees before the end of the proceedings?
Yes. The court can award attorney fees during the proceedings. In Illinois, this is called “interim” attorney’s fees.
What factors will the court consider before awarding interim attorney fees?
The court will award interim attorney fees as needed to allow a party to participate in the litigation. Primary factors the court may consider include the earnings, assets, and needs of each party. The amount your spouse paid his attorney should also be considered.
Are interim attorney fees awarded before or after I incur the costs?
Both. Interim attorney fees can be awarded for fees already incurred, but can also include reasonably anticipated future fees and costs.
My spouse cannot afford to pay attorney fees either. What can the court do?
If neither party has adequate income or assets to pay reasonable attorney fees, the court should allocate the available funds to achieve equality between the parties (as much as this is possible).