Help While Court Proceedings are Pending
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 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 continue until the case is completed or the court makes some other order on the issue.
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 case?
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. So they should not impact on the judge’s final order. This means that the court is not supposed to consider a temporary order in its final disposition. Yet temporary orders allocating parenting time do have an impact on the final parental responsibility determination.
How does the court decide how parenting time (“custody and visitation”) on a temporary basis?
The court decide temporary issues regarding parenting time considering the best-interests of the child. First, the parties are required to attempt to work out matters by agreement through mediation (except if there is domestic violence).
How quickly does current Illinois law provide that a parenting plan should be submitted?
Illinois law provides that parents should submit a parent plan within 120 after service or any petition for parental responsibilities. The law provides that this 120-day rule may be extended for good cause shown.
This is an issue that is fraught with concerns. It is essential that one consult with your lawyer regarding the timing of a parenting plan. As indicated, however, the first step generally is mediation. Thus, Illinois law creates a sense of urgency of commencing mediation early if an agreement regarding parenting time cannot be readily reached.
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 payment of child support considering each parent’s income based on income-sharing guidelines. These guidelines consider the numbers of overnights per year for the non-residential parent. Even with payment of child support and maintenance, there are cases where there are additional expenses that cannot be paid. Occasionally, a court order will address the allocation of payment of debts including the mortgage. 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, and length of marriage. After considering these factors, the court will determine whether maintenance should be awarded. If the court finds that maintenance is appropriate the court considers the Illinois maintenance guidelines. Those maintenance guidelines are supposed to be a starting place in determining an appropriate temporary award.
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. 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, he 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. Interim fees 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).