“Temporary Relief” during a pending Chicago Divorce Case

In most cases, a divorce is not an instantaneous action. The decision to file for divorce sets in motion a process, the result of which will eventually be the finalization of the divorce as evidenced by a comprehensive divorce decree. However, in contrast to other types of litigation which are focused on a single, solitary event (i.e., the commission of a crime, the breaking of a contract, etc.), the subjects of a dissolution of marriage are two ongoing lives (or more, if children are involved) that do not magically stop to allow the divorce to play out. The world continues to turn, and the soon-to-be-ex-spouses continue to work, earn money, incur and pay bills and other liabilities, and manage their dividing household. The division of property and lives may even begin as the divorce is pending, as one or both parties may vacate the marital residence and begin living on his and/or her own, necessarily incurring new expenses (rent/mortgage, utilities, possibly a new car, etc.) and requiring that parties figure out some kind of parenting schedule and division of parenting responsibilities if children are involved. This ongoing financial and familial division during the pendency of a divorce understandably involves a lot of gray areas and uncharted territory – how is the marital income divided, and who pays for which expenses now that the same amount of income is covering two separate households but the parties are still technically married (especially when there is a large disparity between the spouses’ respective incomes)? How much should each party be able to spend each month on their living expenses, and should there be any restrictions on making any larger purchases that will impact the marital estate and potentially decrease the amount of money or property available for division at the conclusion of the divorce? These can be intimidating questions, especially if you find yourself in the midst of a contentious divorce that is likely to continue for quite some time. With what money will you pay your living expenses? How will all of the necessary family expenses be paid, and who will be responsible for paying them? In these cases, the Illinois Marriage and Dissolution of Marriage Act provides that either party may seek relief from the court on a temporary basis, while the case is pending. What type of relief may be sought? There are many forms of relief that may be sought during the pendency of a divorce. The IMDMA provides that parties may move for appropriate temporary relief, specifically including the following: 1. Temporary maintenance and/or temporary child support Parties may seek spousal and/or child support from the other party to ensure they have sufficient cash and/or access to assets during the divorce to cover their reasonable living expenses and those of the children. Because this typically occurs early on in a divorce, before the parties have respectively completed a full disclosure of their financial pictures (i.e., income, assets, liabilities, etc. over the prior three years or so), the law provides for an expedited proceeding to allow the court to allocate income between the parties on a purely temporary basis based on more readily-available and ascertainable information (including the exchange of financial affidavits and limited account and asset documentation). 2. Temporary allocation of parenting responsibilities and parenting time. Parties can also request that the court allocate parental responsibilities and parenting time on a temporary basis, prior to the finalization of a divorce. Accordingly, the court can provide a temporary schedule for the parties and children to follow until the divorce is finalized, taking into consideration all factors that impact the child’s best interest (as laid out by the Illinois Marriage and Dissolution of Marriage Act). The court can also determine which parent will carry out certain child-related responsibilities, particularly related to the child’s schooling, health, religion, and extra-curricular activities, again based on the child’s best interest. These orders often become necessary very quickly, especially once one or both parties vacate the marital residence and new logistics and responsibilities are involved. 3. Temporary restraining order or preliminary injunction These orders essentially require a party not to do something. The law specifically provides that a party may ask the court to enter an order (1) preventing either or both parties from taking any action with respect to one or more assets, accounts, or items of property; (2) removing a child from the state, or (3) striking or interfering with the personal liberty of a party or a child involved. Accordingly, either party may move for any such relief, or for any other injunctive relief where appropriate. 4. Interim attorney’s fees One new expense that parties encounter during a divorce is for their attorney’s fees. In order to ensure that both parties can meaningfully participate in the litigation, the court can order a certain amount of fees be paid to one or both parties’ attorneys from the marital estate. The statute provides that these hearings should be scheduled expeditiously, and also sets forth a list of required information that the responding party must provide in his or her response, including how much he or she has paid to his or her attorneys. In this way, the court attempts to “level the playing field” to ensure both parties have the same access to resources and enjoy the same level of representation. 5. Allocation of use of marital residence The court also has the authority to grant exclusive possession of the marital residence to one party or the other. However, this relief may be granted in very limited circumstances, “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.” The requesting party must meet this standard at a hearing before the court in order to be awarded this relief. 6. Temporary allocation of a pet The IMDMA also allows for a party to seek temporary allocation of a “companion animal” during the pendency of the litigation. Accordingly, if the parties separate and are no longer living in the same residence, one party or the other may ask the court that their pet be allowed to live with that party. However, this does not apply to a party who has a service animal, which shall remain with that party. Effect of temporary relief Temporary relief is just that – temporary. A temporary award is an acknowledgement that the parties need structure and assistance in order to transition from a joint unit to two separate individuals, and from parents to co-parents. Accordingly, these orders can be thought of as “band-aids” – not always perfect, but not permanent. As described above, they are often made before the parties have exchanged all of the required information (whether regarding the parties’ finances or child-related issues) and before a full and complete picture of the same can be obtained and presented coherently to the court; for this reason, the IMDMA specifically provides that these orders do not “prejudice the rights of the parties or the child” which will be addressed at later hearings in the divorce. This means that the provisions of the temporary order do not supersede or negatively affect a party’s right to have the issue heard by the court later on in a more permanent way – in other words, the entry of a temporary parenting time schedule does not mean that the parties cannot have a full hearing on the issue of the parenting time schedule at the conclusion the divorce, and the terms of the temporary parenting time schedule need not have any bearing on the final terms (unless and where relevant). The temporary order can also be revoked or modified during the pendency of a case, and terminates upon entry of a permanent, final order. The experienced family law and divorce attorneys at Ward Family Law, LLC recognize that filing for divorce is the first step of many. We know that our clients are concerned not only about the finish line, but every step in between, and we will help ensure your financial and familial stability both throughout the process as well as at its conclusion.

About

Jennifer R. Ward has exclusively practiced in the matrimonial and family law field for nearly 20 years. Furthermore, Ms. Ward is Adjunct Faculty at the John Marshall Law School teaching family law legal drafting to law students and has done so since 2005.

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