After a divorce is filed in Illinois, the parties establish themselves as separate units with separate financial needs and schedules. The parties also collect evidence for eventual trial. After the parties are divorced, either party can file motions to modify and/or enforce the existing judgment. These are legitimate bases for filings in an Illinois divorce.
What if the filings in a divorce case have no legitimate basis? What do you do if your ex keeps filing frivolous motions in your Illinois divorce case?
It depends on the nature of the frivolous action in court.
Divorce Motions And Pleadings Must Be Legitimate
Every pleading or motion in an Illinois divorce case must include a signature or the attorney or the party filing the pleading.
“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.” Ill. Sup. Ct. R. 137(a)
If the allegations are in the motion are outright lies, signing that pleading or motion is a crime.
“Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person…shall be guilty of a Class 3 felony.” 735 ILCS 5/1-109(d)
Frivolous motions are rarely an outright misstatement of facts. Frivolous motions are usually a misinterpretation of the law or facts misconstrued for malicious purposes.
If the pleading or motion is deemed to not be grounded in fact, grounded in law or has a malicious/frivolous purpose, the court may sanction the filer of that motion.
“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)
“The purpose of the rule is to penalize attorneys and parties who abuse the judicial process by filing frivolous or false matters without a basis in law or fact or for purposes of harassment.” In re Marriage of Petrik, 973 NE 2d 474 – Ill: Appellate Court, 2nd Dist. 2012
The sanction is always a denial of the pleading or motion and the opportunity for a subsequent attorney’s fees award.
“An appropriate sanction may include an order to pay the other party’s reasonable expenses, including reasonable attorney’s fees, incurred as a consequence of the offending pleading, motion, or other paper.” In re Marriage of Adler, 648 NE 2d 953 – Ill: Appellate Court, 1st Dist., 4th Div. 1995
Even if attorney’s fees are not awarded immediately following the sanction, they can be awarded at the end of the divorce.
“If there is any inequity in [an] interim fee order, it can be addressed in the trial court at the hearing for final attorney fees.” In re Marriage of Tetzlaff, 711 NE 2d 346 – Ill: Appellate Court, 1st Dist., 6th Div. 1999
After the frivolous motion is heard by the court you can orally move for sanctions instanter (right away there in court). Or, you can file a motion for sanctions.
“When relief under Rule 137 is sought, the petition must meet certain specificity requirements. It must identify: (1) the offending pleading, motion, or other paper; (2) which statements in the document were false; and (3) the fees and costs that directly resulted from the untrue allegations. Such specificity is necessary to afford the responding party an opportunity to challenge and defend the allegations alleged to be untrue and to enable the trial court to make a determination of the reasonable expenses incurred as a consequence thereof.” In re Marriage of Adler, 648 NE 2d 953 – Ill: Appellate Court, 1st Dist., 4th Div. 1995
Any behavior by any party or attorney can be deemed frivolous and, thus, punishable by an award of attorney’s fees.
“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(b)
750 ICLS 5/508(b) specifies the word “hearing.” So, the withdrawal of an inappropriate motion before it’s heard should eliminate exposure to fee petitions. Further silliness in the actual courtroom is going to cause big problems.
Frivolous filings will result in the filer paying the attorney’s fees.
“We believe the significant circumstance of the case was not the relative ability of the parties to pay, each of whom had sufficient means, but rather the litigiousness of the defendant. The record shows he combined legal tactics, which delayed the proceedings, with a campaign of economic coercion…He caused the extended litigation and, in view of the record in this case, it was an abuse of discretion for the trial court not to grant the plaintiff the full amount of her attorneys’ fees.” Albert v. Albert, 10 Ill. App. 3d 539, 542 (Ill. App. Ct. 1972)”
The defense against an accusation of a frivolous filing is that the filing was merely unpopular and not necessarily unethical. “[T]he rule is not intended to penalize litigants and their attorneys merely because they were zealous, yet unsuccessful. ” Peterson v. Randhava, 313 Ill. App. 3d 1, 7 (Ill. App. Ct. 2000)
Frivolous Behavior In An Illinois Divorce Courtroom
As a reminder, Rule 137 is for bad written instruments only. “Because Rule 137 addresses the pleadings, motions and other papers a litigant files, the rule does not provide a sanction against all asserted instances of bad faith conduct by a litigant or the litigant’s attorney during the course of litigation.” Krautsack v. Anderson, 861 NE 2d 633 – Ill: Supreme Court 2006
If the motion is relatively sound but the motion filer’s court behavior is excessive, annoying or exasperating, they still may be sanctioned via a petition for direct criminal contempt.
“Contempt of court is an act that is calculated to embarrass or obstruct a court in the administration of justice, or that is calculated to lessen its authority or dignity.” In re Marriage of Oleksy, 787 NE 2d 312 – Ill: Appellate Court, 1st Dist., 2nd Div. 2003
“The conduct which may be punished by means of criminal contempt proceedings covers the entire gamut of disrespectful, disruptive, deceitful, and disobedient acts (or failures to act) which affect judicial proceedings.” In re Marriage of Betts, 200 Ill.App.3d 26, 45, 146 Ill.Dec. 441, 558 N.E.2d 404 (1990)
This is really an extreme request of the court because the direct criminal contempt’s possible punishment is imprisonment of the contemnor.
“Imprisonment for criminal contempt is inflicted as a punishment for that which has been done” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)
Which would then require a full criminal hearing with all the “beyond a reasonable doubt” requirements.
“The respondent in a…criminal contempt proceeding is entitled to information on the nature of the charge, an opportunity to answer, the privilege against self-incrimination, the presumption of innocence, and the requirement of proof of guilt beyond a reasonable doubt.” In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404 (Ill. App. Ct. 1990)
Frivolous motions are more likely to warrant an eye roll than a body attachment from an Illinois divorce judge.
But, frivolous motions are better served as an example of “the boy who cried wolf.” A multitude of denied motions is going to seriously impact the credibility of the filer in any later motions or testimony that they will provide.
Sooner or later, a divorce case must go to trial and then the frivolous motions will stop…unless you have children.
Frivolous Motions To Modify Parenting Time.
Illinois courts do not want to see you again soon after your Illinois divorce.
Illinois courts require a substantial change of circumstances in order to modify virtually anything in a post-judgment divorce.
“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
Illinois courts will not even hear a motion to modify parenting responsibilities for 2 years after an order is entered.
“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)
Attempts at modification that are deemed harassing will be fined.
“Attorney’s fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious or constitutes harassment.” 750 ILCS 5/610.5(f)
Excessive improper attempts at modification will result in an outright bar against filing further motions.
“If the court finds that a parent has repeatedly filed frivolous motions for modification, the court may bar the parent from filing a motion for modification for a period of time.” 750 ILCS 5/610.5(f)
Quit entertaining frivolous motions! As George Bernard Shaw said, “Never to wrestle with a pig. You get dirty, and besides, the pig likes it.” Ask for sanctions and trial. The court wants you to!
In fact, the failure to reasonably compromise and end the case is frivolous in itself. “There are times when the failure to compromise is frivolous” In re Marriage of Mantei, 583 NE 2d 1192 – Ill: Appellate Court, 4th Dist. 1991
Frivolous filings will not be paid for by the other party if the court finds “that too much time was spent on all matters due to the parties’ failure to compromise.” In re Marriage of Walters, 604 NE 2d 432 – Ill: Appellate Court, 2nd Dist. 1992
To learn more about how to stop frivolous motions in an Illinois divorce court, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.