Divorce and paternity cases seem to have a lot of emergencies that require the attention of an Illinois divorce court. How do you file an emergency motion in Chicago, Illinois?
What Is A Motion?
Typically, if two parties disagree about something the court has jurisdiction over (in a marriage it’s almost everything, in a parentage case it’s just the kid’s issues) the parties must move (the verb for motion) the court asking the court to decide for them in the absence of the agreement. The motion will describe the relevant law and apply the alleged facts to the law with a request as to how the court should rule.
This process of filing a motion does not result in an immediate ruling. After filing the motion, a court date to present the motion is given at least a week away. The opposing side is then mailed, faxed or emailed a copy of that motion so that the opposing side has sufficient notice. At that first court date for presentment of the motion the opposing side will be given a certain amount of time (usually 14 to 28 days) to file a written response to the motion. The court will then usually set a status date regarding the answer 30 days in the future (this is, in part, to encourage the parties to work it out themselves). A hearing date will then, finally, be scheduled. On the hearing date, the court will actually rule on the motion.
All of these notice requirements and court dates means it can take months to get the relief you are requesting in your motion.
There is a way to get immediate relief from the court: file an emergency motion.
What Is An Emergency Motion?
In Chicago, Illinois, emergency motions are governed by Cook County Court Rule 13.4(a)(ii) which reads:
a. Emergency motions shall be heard at a time designated by the judge to whom the case is assigned.
b. Facts identifying the nature of the sudden or unforeseen circumstances which give rise to the emergency and the reason why the matter should take precedence shall be stated with particularity in an affidavit or verification in support of the emergency motion.”
In addition to Cook County Rule 13.4(a)(ii), emergency motions in Chicago are also governed by Administrative Order 2021 AO 3.
“Emergency Motions shall include an affidavit or verification stating facts that identify the nature of the sudden or unforeseen circumstances which give rise to the emergency and the reason why the matter should take precedence.” Cook County Domestic Relations Administrative Order 2021 AO 3(1)
Your emergency needs to meet the definition of an emergency.
“An emergency is defined as a sudden and unforeseen circumstance that may cause injury, loss of life, or damage to property and that requires urgent response and remedial action.” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
The emergency motion must notify the opposing party…if possible.
“Except for good cause shown, the movant shall provide a minimum of 24 hours’ notice to the opposing side….
b. The notice shall also contain the Zoom information for the calendar judge regularly assigned to the case. The notice shall be clear that the proceeding will not be conducted in the physical courtroom.” Cook County Domestic Relations Administrative Order 2021 AO 3(3)
The nature of an emergency means that sometimes you cannot assure that the opposing side will receive notice (you may not have their address) or be present for your emergency motion.
“Notice not required – Emergency motions and motions which by law may be made ex parte may, in the discretion of the court, be heard without giving prior notice and without calling the motion for hearing. Emergency motions shall, so far as possible, be given precedence.” Cook County Court Rule 2.2(a)
“If an Emergency Motion is presented on an ex parte basis without notice to the opposing side, and the applicable statute does not specifically provide for an ex parte hearing, then the motion must set forth those facts that support the reason why the matter should be heard without notice.” Cook County Domestic Relations Administrative Order 2021 AO 3(3)(c)
All emergency motions will be scheduled for 9:00 AM in front of all Cook County judges.
“All Emergency Motions shall be noticed for 9:00 a.m. before the regularly assigned calendar judge.” Cook County Domestic Relations Administrative Order 2021 AO 3(3)
“A courtesy copy of the Emergency Motion along with a representation that the movant filed the Emergency Motion, the e-filing envelope number if applicable, and a verification of notice shall be submitted via e-mail in PDF format, with all counsel of record and self-represented parties included as recipients, to the courtroom e-mail address of the regularly assigned judge prior to 9:00 a.m. Except for good cause shown, if the courtesy copies are not received prior to 9:00 a.m., the Emergency Motion will not be heard.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)
The first thing a judge will do before hearing an emergency motion is decide whether the matter is an emergency or not.
“If the Court timely receives the courtesy copies, it will hear the Emergency Motion via Zoom at 9:00
a.m. to determine whether the matter presented is a valid emergency.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)(b)
A judge will often refuse to hear the substance of an emergency motion by simply saying, “This is not an emergency.” Your integrity and the brevity of your argument is essential in getting an emergency motion fully heard.
The Administrative Order then describes what is NOT an emergency.
“Absent the risk of imminent harm or severe prejudice, the following matters will generally not be heard as an emergency:
- Motions to establish or modify custody, set child support, paternity, or visitation, unless risk of imminent harm to child
- Motions seeking execution of documents (e.g. tax returns, quit claim deeds)
- Rules to show cause
- Motions to Vacate an Order entered by the judge assigned to the case unless it involves an issue of endangerment to child” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
“If the Court determines that the matter presented is a valid emergency, the Court will instruct the parties with the next steps.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)(c)
The next steps will usually be a full evidentiary hearing later that day.
What If Your Emergency Motion Is Deemed Not To Be An Emergency
Emergencies lie in the eye of the beholder. I would say that over 50% of emergency motions are deemed not emergencies based on the facts, presentation, reputation of the parties and general mood of everyone that day.
The judge may even read your motion and decide “this is not an emergency” before hearing from you at 9:00 AM.
“The Court retains the discretion to determine based on the pleadings whether the matter is a valid emergency prior to 9:00 a.m. If the Court determines whether a matter is an emergency before the start of the 9:00 a.m. call, the Court shall enter an order and notify the parties whether they shall still appear at 9:00 a.m.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)(e)
If the court deems your emergency motion to not be an emergency, do not worry. Your motion is not extinguished. Your motion just will not be heard that day.
“If it is determined that the matter presented is not a valid emergency, the movant will be directed to place the matter on the Court’s regular motion call and to notify all parties that the motion will not be heard as an emergency.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)(c)
If deemed not an emergency, you will have to reschedule your motion for a later date on the regular, non-emergency calendar.
It is possible that a finding that a motion was NOT an emergency can result in some kind of sanction such as having to pay the attorney’s fees of the other party who had to attend (which should be minimal).
“The Emergency Motion procedure set forth in this Administrative Order shall not be used as a vehicle to circumvent the non-emergency motion procedures. If the Court determines that the matter presented is not a valid emergency, the Court may issue sanctions against the movant. A party and/or their counsel who appeared for or responded to a Motion submitted as, but found not to be, an emergency may be entitled to reimbursement by the movant of actual expenses, fees and costs incurred, under the discretion of the Court.” Cook County Domestic Relations Administrative Order 2021 AO 3(5)
Emergency Motions Regarding Children
Parents who split up, obviously, do not have great communication between each other but they still share a lot of responsibilities with the children. The Allocation of Parenting Time and Parenting Responsibilities is a 12 to 30 page document that covers almost every parenting situation regarding who should do what with the kids and when. The Allocation of Parenting Time and Parenting Responsibilities leaves no doubt as to what is to happen between the parties as parents.
In the build-up to a final order, parents make informal agreements between each other. These informal agreements are how the parents manage until an Allocation of Parenting Time and Parenting Responsibilities is entered by the court. A miscommunication during this preliminary stage of the divorce process can often provoke an emergency motion filing by either party to clarify an issue that need to be addressed immediately.
Typically, the parties will have to testify to what was initially planned as their basis for the emergency. This is always best done by showing the court the plans in writing: text or emails.
Emergency motions regarding holiday time with the children are routinely dismissed by a judges who like to say, “You knew Christmas was going to be on December 25 this year. You should have dealt with this earlier. I find this not to be an emergency.”
Emergency motions in Cook County, Illinois are always accepted when the children might be in danger like if a parent starts dating a sex offender.
You would think that motions for child support would be valid emergencies but they are not emergencies in Illinois. Motions for child support get a short date and a summary hearing where the judge simply looks at the parties’ financial affidavits to determine the child support amount.
Emergency Motions Regarding Money
Emergency motions regarding money come in two forms: 1) Give me some spending money and 2) Stop spending so much money.
In the fresh angst of divorce the party who controls the couple’s finances will often “cut off” the other party by cancelling credit cards or closing accounts. The other party will then file an emergency motion telling the court that they need to live in advance of the 60 days it would take to have a regular motion heard.
Emergency motions for temporary support are really a double-edged sword. If you’re asking an amount that maintains a lavish lifestyle, the court may find that the matter is not an emergency. However, if you ask for just enough to live off of so that the motion might better be considered an emergency, you may get stuck with that amount temporarily and permanently.
Spouses who are profligate spenders may find themselves served with an emergency motion to sequester the marital funds in a lawyer’s trust account until the divorce is finalized. Failing the deposit into a lawyer’s trust account, the court may issue an injunction preventing the parties from spending certain funds or selling marital assets. The violation of an injunction can be met by sanctions from the court.
Injunctions and emergency motions are not always necessary. If one of the parties continues to spend money for purposes not related to the marriage (drugs, gambling or paramours) their final share of the marital estate can be reduced by the alleged dissipation of assets at the end of the divorce.
Emergency Motions Regarding Insurance
It is extremely common for one spouse to cancel the other spouse’s health insurance in a fit of spite. This always warrants an emergency motion because there is always the possibility of a health emergency that will require immediate care that necessitates health insurance. After the emergency order to restore health insurance is entered, the party who brought the motion can ask to have their attorneys’ fees paid by the health insurance cancelling party because they were the reason the motion had to be filed.