Ex Parte Order Of Protection Hearings In Illinois

Orders of protection are for people in fear of another person…whom they were in a relationship with or shared a home with? Confronting someone you are both that close to and in fear of is overwhelming. Illinois law allows that the first time a victim of abuse is in court, the victim can testify without the alleged abuser there. The victim need not even notify the alleged abuser of their intent to secure an initial, emergency order of protection. This “petition by surprise” allows the petitioner immediate protection where notice might provide a final opportunity for the respondent to harass or abuse the petitioner before an order of protection is entered. Presenting anything in court without notice and without the respondent present is referred to as “ex parte.” What Does Ex Parte Mean? Ex parte means “Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest” Black’s Law Dictionary (11th ed. 2019) “One of the most fundamental norms in our judicial system is that courts need to hear from both parties on a legal issue before granting any form of legal relief. Nevertheless, rules of civil procedure permit a vulnerable party to appear in court ex parte (without prior notice to the other party), to obtain a temporary order prohibiting a wrongful action about to be taken that will cause irreparable harm.” Debra Pogrund Stark & Jessica Choplin, Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence, 2017 U. Ill. L. Rev. ___ (2017) Parties seeking protection need to know that they can proceed to court without initial confrontation. Respondents to those petitions need to know what rights they have once the ex parte evidence has been offered. Getting An Ex Parte Hearing On A Petition For Order Of Protection In Illinois Ex parte hearings are granted in emergency petitions for orders of protection. “An emergency order of protection shall issue if petitioner satisfies the requirements of this subsection for one or more of the requested remedies. For each remedy requested, the petitioner shall establish that:         (1) The court has jurisdiction under Section 208;        (2) The requirements of Section 214 are satisfied; and        (3) There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent.” 750 ILCS 60/217(a)(emphasis mine) The ex […]

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Waiver And Laches In An Illinois Divorce

Imagine your ex waits years before asking the court to enforce a provision in your divorce judgment. Can they still get relief? Two defenses often stop these late requests: waiver and laches. When someone doesn’t do something in an Illinois divorce matter, the other party can say “Sorry. You snooze, you lose. You should have asked for that months/years ago. We’re not dealing with it now.” There are two legal bases for denying some kind of relief that the other party has brought up at the proverbial last minute: Waiver and Laches. Waiver In An Illinois Divorce Case Waiver is a defense to a request for relief that explains to the court “this issue was waived previously by the words, actions or inactions of the person requesting relief.” “Waiver is an equitable principle invoked to further the interests of justice whenever a party initially relinquishes a known right or acts in such manner as to warrant an inference of such relinquishment.” Mollihan v. Stephany, 368 NE 2d 465 – Ill: Appellate Court, 1st Dist. 1977 “A waiver may be either expressed or implied, arising from acts, words, conduct, or knowledge of the insurer. An implied waiver arises when conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive it.” Home Ins. Co. v. Cincinnati Ins. Co., 821 NE 2d 269 – Ill: Supreme Court 2004 “Generally, to make out a case of implied waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose.” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted) “The burden of proof is upon the party claiming a waiver to prove the facts upon which he relies for such waiver.” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted) “Proof of a voluntary and knowing waiver of a contract provision should not be assumed from mere inaction” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted) An example of waiver would be a spouse failing to object for months when support was paid late. Making an issue of late support months later could be barred if a court determines they waived strict enforcement. Laches In An Illinois Divorce Case Laches looks like waiver […]

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Enforcing A Judgment In An Illinois Divorce

After an Illinois divorce is settled or a trial order is issued, the divorce is not over. Both parties must still comply with the terms of the Judgment for Dissolution of Marriage and the incorporated Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities. Illinois law provides multiple methods for enforcing those terms. All of these contracted agreements become incorporated into the judgment once the Judgment for Dissolution of Marriage is entered. At that time, the agreements are enforceable as judgments. “Under section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Act), settlement agreements are enforceable as terms of a judgment and by incorporation into a judgment they become part of the trial court’s order. By such incorporation, the agreement’s subservient nature as a contract gives way to the dominant character of the adjudication. Thus, the terms of the marital settlement agreement are enforceable as terms of the judgment.” In re Marriage of Sloane, 255 Ill. App. 3d 653, 656 (Ill. App. Ct. 1993) “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/504(e) Orders get enforced in the same court the order was issued. “Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a) If someone has moved, the order will be enforced in the new, appropriate county or state. “If neither party continues to reside in the county wherein such judgment was entered or last modified, the court on the motion of either party or on its own motion may transfer a post-judgment proceeding…to another county or judicial circuit, as appropriate, where either party resides.”750 ILCS 5/511(a) But, filing a motion for enforcement is kind of silly because they are already not following the order. What are you going to do? Get another order which they will, in turn, also not follow? You need something extra. You need the power of contempt. Enforcing a Judgment Via Contempt To violate a court order is to insult the decency and power of the court which issued that order. Therefore, that court may hold the violator in contempt for said violation. Contempt can either be criminal or civil. Violation of a judgment for dissolution of marriage and its incorporated orders is invariably an issue of civil contempt. […]

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How Is Maintenance Calculated In Illinois?

In Illinois, maintenance (formerly known as alimony) is always one of three different numbers: To determine which of these three formulas will be applied in your Illinois divorce case and what number will, eventually, be arrived at as your maintenance payment, the below analysis must occur. Will There Even Be Maintenance In Your Illinois Divorce? For every divorce case in Illinois, the court must first find that ANY maintenance award is appropriate. “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including: (1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court […]

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Interest and Dividend Income In An Illinois Divorce

“If you don’t find a way to make money while you sleep, you will work until you die.” – Warren Buffett.  Lots of people have followed Warren Buffett’s advice by saving and investing so their money can earn them an independent income one day. These investments generate interest, dividends, and other kinds of income. However, even the wisest investor will have a personal life and, sometimes, that means divorce.  How is interest, dividend, and other income treated in an Illinois divorce? Asset Division In An Illinois Divorce Assets that generate income are divisible in a divorce if the assets are marital property. After the designation of an asset being “marital property” the Illinois divorce court “shall divide the marital property” 750 ILCS 5/503(d) Non-marital property is property that was acquired before the marriage or received as a gift or inheritance. Non-marital property stays with the spouse whose name the non-marital property is in. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Dividing the assets is not the end of the story, however. If those assets generate some kind of income via rents, interest, dividends, etc., then that income must be factored into any maintenance or child support calculations. Income From Assets In An Illinois Divorce In determining maintenance (formerly known as alimony), the courts will consider “the income and property of each party” 750 ILCS 5/501(a)(1). Child support amount is similarly arrived at based on income in that child support in that the Illinois statute states its goal is “to allocate the amount of child support to be paid by each parent based upon a parent’s net income.” But what is “income” for the purposes of a divorce? Income is “[t]he money or other form of payment that one receives, usu[ally] periodically, from employment, business, investments, royalties, gifts and the like.” Black’s Law Dictionary 778 (8th ed. 2004) The Illinois child support statute agrees that income can come from a broad range of sources. “”[G]ross income” means the total of all income from all sources” 750 ILCS 5/505(a)(2)(A) The Illinois maintenance statute reads similarly and directs us back to the child support statute should there be any questions. “”gross income” means all income from all sources, within the scope of that phrase in [the child support section] of this Act” For the purposes of both child support and maintenance gross income is a factor […]

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Income Producing Assets And Maintenance In An Illinois Divorce

Warren Buffett once said, “If you don’t find a way to make money while you sleep, you will work until you die.” Many people have saved enough money, which subsequently makes enough money to maintain themselves…and then they get divorced. The money divided is often enough to live off as well (or at least pay for half of the divorced person’s expenses). Do income producing assets mean that no one has to pay maintenance (formerly known as alimony)? Or do income producing assets mean that there is now even more alimony to be paid from that income after an Illinois divorce? Is There So Much Assets Awarded That Neither Spouse Needs Maintenance? The assets awarded in an Illinois divorce absolutely affect whether an Illinois divorce court will award maintenance. Before even considering the amount of maintenance, an Illinois divorce court must consider whether the assets awarded to either spouse make a maintenance award appropriate. “In a proceeding for dissolution of marriage…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse… The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage.” 750 ILCS 5/504(a) If the assets awarded are so incredibly lucrative that the spouse’s needs will certainly be met, no maintenance need be awarded.If the assets awarded do not produce such clear and tremendous independent income, the court will award maintenance, either pursuant to guidelines (a mathematical formula) or deviating from guidelines (based on fairness). How Is Maintenance Calculated When Income From Assets Are Not Considered? “[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1) A “[m]aintenance award in accordance with guidelines.…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A) This maintenance guideline amount has a cap based on the maintenance receiver’s income relative to the maintenance payor’s income. “The amount calculated as […]

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Freezing Assets During an Illinois Divorce

When a divorce begins, there is a fundamental lack of trust between the two spouses. This lack of trust is especially strong when it comes to finances. There will always be suspicion that one spouse will try to hide or remove assets from the marriage. Because of this, parties will try to ask the court to freeze all of the marriage’s assets during the divorce until those assets can be appropriately allocated in the divorce process. “In a marriage dissolution proceeding, it is proper to prevent one spouse from secreting or disposing of marital assets” Erlich v. Lopin-Erlich, 553 NE 2d 21 – Ill: Appellate Court, 1st Dist. 1990 How do you freeze assets in an Illinois divorce? The Automatic Stay In many states, there is an “automatic stay” in the statutes that prevents parties to a divorce from doing anything to diminish or conceal any assets. In addition or in the alternative, other states also will allow judges to issue standing orders that are automatically issued at the beginning of a divorce case. Those standing orders can personally order the parties to a divorce to essentially freeze their assets until further order of court. There used to be a provision in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1), providing for the automatic restraint against transferring, encumbering or disposing of any property without bond the moment a divorce was filed until further order of court. This provision of the act automatically freezing assets in an Illinois divorce has since been removed after the provision was found to be unconstitutional by the Illinois Supreme Court. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993) The court found that the provision was overly broad because there are almost always non-marital assets that would also be frozen under this Illinois statute. Furthermore, any legal restriction by the state or a court must require “due process” under the U.S. constitution and the Illinois constitution. Due process is the fair application of the law. The court held that automatically freezing someone’s assets without notice, hearing or even a signed affidavit by someone familiar with the facts is a direct violation of due process. So, there is no automatic freezing of assets in an Illinois divorce.  Chicago Divorce Lawyer Temporary Restraining Order or Preliminary Injunction Assets can eventually be frozen in an Illinois divorce, just not automatically.  A motion must be filed in […]

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