Married people each have their own roles within the marriage. One spouse does the dishes. One spouse takes out the garbage. Often, one spouse is in charge of paying the bills. What happens when an Illinois spouse stops paying bills during an Illinois divorce?
When an Illinois divorce is filed, the spouse that pays the bills often decides that they no longer want to pay for the gas, electric, or rent of the marital home (always after they move out). A spouse getting divorced in Illinois may find that their spouse has cut off their phone, car or health insurance.
Can a spouse turn off utilities during an Illinois divorce?
Can a spouse refuse to pay rent, insurance or car payments during an Illinois divorce?
There ought to be a law!
Automatic Stay Against Turning Off Utilities, Stopping Paying Rent, Phone or Insurance In An Illinois Divorce
There used to be a law in Illinois which prevented divorcing parties from spending marital money inappropriately until further order of court.
“[T]he Illinois Marriage and Dissolution of Marriage Act (the Act) ( 750 ILCS 5/501.1 (West 1992)) provid[ed] for a “dissolution action stay” that takes effect upon service of a summons and petition filed under the Act and restrains the parties to the action from transferring or otherwise disposing of any property, except under certain circumstances, until a final judgment or further order of the court is entered or the proceeding is dismissed.” Messenger v. Edgar, 157 Ill. 2d 162, 165 (Ill. 1993)
That’s a good idea. Once a divorce is filed the spouses should continue with all their current obligations until a divorce court makes an order allowing the spouses to do otherwise.
Only one problem…the Illinois Supreme Court thought the law was unconstitutional.
The law “include[d] a restraint affecting property that cannot be considered in any way a marital asset” Messenger v. Edgar, 157 Ill. 2d 162, 177 (Ill. 1993)
This was too much. “To ensure that the State has not exercised its power to classify arbitrarily, this court [applies] judicial review [via rational basis test]….Under the rational basis test, a statutory classification need only bear a rational relationship to a legitimate State goal.” People v. Reed, 148 Ill. 2d 1, 7-8 (Ill. 1992)
The Illinois Supreme Court thought the law which automatically prevented Illinois parties from spending (or not spending marital assets) did not use rational means to accomplish their goal of keeping spouses from turning off the power during a divorce. “[T]he means adopted by the legislature is not a rational means of accomplishing its purpose.” Messenger v. Edgar, 157 Ill. 2d 162, 177 (Ill. 1993)
Whether you agree with the Illinois Supreme Court or not, that is the law now as to automatic stays for financial issues (oddly, the Illinois Supreme Court kept automatic stays for children’s issues remained in place).
Motion For Temporary Injunction To Not Turn Off Utilities, Cancel Insurance or Keep From Getting Evicted.
If your spouse threatens to turn off utilities or stop paying other bills, you can go to court and ask that a court order be entered preventing them from doing so.
A court order that tells someone NOT to do something is called an injunction. All injunctions before a divorce is final are called temporary or preliminary injunctions.
“The primary purpose of a preliminary injunction is to preserve the status quo until there can be a final hearing on the merits. In this regard, the term “status quo” has been consistently defined by the courts as ‘the last actual, peaceful, non-contested status which preceded the pending controversy.’ Generally, preservation is accomplished by keeping everything at rest. However, in certain circumstances, a state of rest may be fatal to the plaintiff’s rights.” In re Marriage of Sherwin, 463 NE 2d 755 – Ill: Appellate Court, 1st Dist. 1984
“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.” 750 ILCS 5/501(b)
While a court requiring that a spouse NOT turn off utilities, phones or letting rent or insurance lapse seems like an obvious ruling, an injunction requires certain proofs.
“In order to show entitlement to a preliminary injunction, the moving party bears the burden of showing (1) a certain and clearly ascertainable right in need of protection, (2) irreparable injury without injunctive relief, (3) an absence of adequate legal remedies, and (4) a likelihood of success on the merits.” In re Marriage of Rayfield, 221 Ill. App. 3d 763, 766 (1st Dist. 1991).”
These factors are easy to prove in the context of an Illinois divorce case.
Divorcing people have a right to shelter, health care, communication, heat and electricity.
The mere ongoing threat of injury is sufficient to establish the second prong. An injury, for the purposes of injunctive relief is not an “injury that is beyond repair or beyond compensation in damages, but rather denotes transgressions of a continuing nature.” Tamalunis v. Georgetown, 185 Ill. App. 3d 173, 190 (4th Dist. 1989) citing SSA Foods, Inc. v. Giannotti, 105 Ill. App. 3d 424, 428 (1st Dist. 1982).
The bills are due every month. Not paying bills is by its very nature a threat of “continuing nature.”
A “legal remedy” means that you would know exactly what the effect of their threat would cause. “A legal remedy is inadequate where damages are difficult to calculate at the time of hearing.” In re Marriage of Hartney, 355 Ill. App. 3d 1088, 1090 (2d Dist. 2005)(citations omitted)
If the utilities get cut off, will you may just have to put on a sweater or it may get so cold that you will freeze to death. The damage cannot be calculated in advance.
If you are asking the court to merely continue what has happened in the past, you do not need to satisfy the 4th prong of “succeeding on the merits.” Leaving things the same is, by defition, not a “success.”
If what you are requesting does “not alter the status quo, [a party is] not required to show he would likely prevail on the merits after full hearing” In re Marriage of Joerger, 581 NE 2d 1219 – Ill: Appellate Court, 4th Dist. 1991
Once all of these items are proven, “the trial court must balance the equities or relative inconvenience to the parties and determine thereby whether a greater burden will be imposed on the defendant by granting the injunction than on the plaintiff by denying it”In re Marriage of Schwartz, 475 NE 2d 1077 – Ill: Appellate Court, 1st Dist. 1985
Of course, money is fungible. In lieu of asking your spouse to pay the bills during your divorce, you could just ask your spouse for the money to pay the bills.
Temporary Support To Pay Utilities, Rent, Insurance And Other Bills During An Illinois Divorce
In an Illinois divorce, “[e]ither party may petition or move for…Temporary maintenance or temporary support, accompanied by an affidavit, accompanied by an affidavit as to the factual basis for the relief requested.” 750 ILCS 501(a)(1)
These motions get heard quickly because they do not require evidence beyond the financial affidavit and the financial affidavit’s supporting documents. Motions for support are done on a summary basis.
“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation, except an evidentiary hearing may be held upon a showing of good cause.” 750 ILCS 5/501
The money for support is usually calculated according to a “guidelines” formula based on the parties incomes…not based on what bills need to be paid.
If this “guidelines” support is not enough to pay the outstanding bills of the household, you can ask the court to award non-guidelines support.
“[T]he statute provides that the guidelines must be followed ‘unless the court makes a finding that the application of the guidelines would be inappropriate.’ In re Marriage of Brill, 87 NE 3d 302 – Ill: Appellate Court, 2nd Dist. 2017
“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.” 750 ILCS 5/503(b-1)(2)
There are plenty of good bases for non-guidelines maintenance in order to pay current bills such as, “the needs of each party…or the standard of living established during the marriage” 750 ILCS 5/504(a)(2),(7)
What If The Utilities or Phones Are Already Shut Off? What If Insurance Has Already Been Cancelled?
If the money wasn’t spent on rent, utilities, or payments…it must have been spent on something else. Whatever it was spent on (it is NEVER saved) is probably a dissipation of assets.
“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992
Any dissipated assets are then used as part of the calculation when the court finally divides all the marital assets.
An Illinois divorce court“shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)
Of course, knowing you’ll get more marital assets months from now when the divorce is finalized does not turn on the lights, gas or keep insurance current today.
So, the mere possibility of a dissipation is sufficient for an order from the court to stop spending money for non-marital purposes and start spending that money on current bills.
“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
The first few months of a divorce are terrible and usually involve petty disputes like turning off utilities and cancelling phones. The truth is, your spouse will not be paying any of your bills once you are actually divorced. Even if your spouse is ordered to pay you maintenance and child support, you can guarantee that your soon-to-be-ex-spouse will play games with that support if they are not paying the utilities, insurance, rent and other bills that spouse just paid a few months ago.