Divorces in Illinois can often start with a bang. Specifically, one party can make horrible accusations about the other party in a Petition for Order of Protection. A Petition for Order of Protection can be granted on an emergency basis causing one spouse to be immediately awarded use of the marital home and physical custody of the children.
Because the stakes are so high and the incentives so strong, parties to an Illinois divorce may be tempted to stretch the truth in the allegations listed in their Petition for Order of Protection.
Lying in a Petition for an Illinois Order of Protection is a big problem. Not only will it cause the Petition for an Order of Protection to be denied…it can cause the party defending the Petition for Order of Protection to be awarded attorney’s fees as a punishment.
“Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal, as provided in Supreme Court Rule 137.” 750 ILCS 60/266
There are two elements to find liability for attorney’s fees for untrue statements in a Petition for Order Of Protection: 1) that they were “made without reasonable cause AND found to be untrue.”
Just stating false allegations is not enough. The allegations also had to be unreasonable at the time they were made.
The allegedly false alleger can simply say “I believed those allegations were true at the time. Here’s why I thought that.”
The statute does not say whether the “reasonable cause” must be objectively or subjectively reasonable. Do any lawyers reading think we have a strict scrutiny vague statute?
In addition to 750 ILCS 60/266, there is Illinois Supreme Court Rule 137 which forbids false allegations in ANY pleading and allows attorney’s fees caused by said false signed allegations.
“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)
A Motion For Fees For False Statements In A Petition For An Order of Protection will inevitably come after the Petition For An Order of Protection is heard.
The Motion for Fees For False Statements must be specific.
Because former section [750 ILCS 60/266] is penal, it is strictly construed. Thus, the complaining party may seek only those costs and fees which have a direct connection to the sanctionable pleadings or statements. A party seeking an award under section 2-611 has the burden of establishing that he or she actually incurred fees and expenses by reason of the untrue pleadings. The petition for fees must specifically identify both the statements falsely made and the fees that resulted from those false statements. These principles are consistent with the plain language of the statute, which allows recovery of fees actually incurred by the other party by reason of the untrue pleading. If untrue portions of the pleading would not actually affect the outcome of the case, recovery of fees unrelated to the specific untrue statements is not allowed.” Patton v. Lee, 940 NE 2d 802 – Ill: Appellate Court, 2nd Dist. 2010 (citations omitted)
The Motion For Fees For False Statements cannot just accept the findings of the order that resulted from the original Petition for Order of Protection’s
“A finding under the requirements of [750 ILCS 5/266] is an independent determination distinct from any previous judgment relating to any prior motions to dismiss, motions for summary judgment or motions for a directed verdict.” La Salle Nat’l Bank v. Union Oil Co., 532 NE 2d 277 – Ill: Appellate Court, 1st Dist. 1988
But…this refers to the old rule that Rule 137 and 750 ILCS 60/266 replaced. Rule 137 and 750 ILCS 60/266 say that attorney fees are “to be summarily taxed by the court.” The word ‘summarily‘ probably means no new evidence.
If the falsehoods in the Petition for Order of Protection are so egregious, the court can refer the case to the State’s Attorney office for prosecution for perjury.
“The court may direct that a copy of an order entered under this Section be provided to the State’s Attorney so that he or she may determine whether to prosecute for perjury.” 750 ILCS 60/266
Practically, the entire motion must be heard again in order to be awarded fees…so you just accrue the fees again in order to collect the fees you spent on the first petition.
If the Petition for Order of Protection is part of a divorce or parentage case in Illinois, the costly 750 ILCS 60/266 fee petition can be replaced by the very simple fee petition process provided for by the Illinois Marriage and Dissolution of Marriage Act.
“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. 750 ILCS 5/508(a).
“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)(1)
“A petition for temporary attorney’s fees in a post-judgment case may be heard on a non-evidentiary, summary basis.” 750 ILCS 5/508(a-5)
Furthermore, the Illinois Marriage and Dissolution of Marriage Act provides that “If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(a)
The only problem is that Petitions For Orders of Protection are not brought under “this Act.” But what if the Petition for Order of Protection was consolidated into the underlying Divorce or Parentage actions? Would that be enough to satisfy the requirements of 750 ILCS 508(b) in spirit if not in exact language.
If your Illinois divorce case has a Petition for Order of protection, with false allegations or not, you have a real problem on your hands. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.