Divorce and paternity cases seem to have a lot of emergencies that require the attention of the court.
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 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 is given at least a week away. The opposing side is then mailed, faxed or emailed a copy of that motion so that they have 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 where the court will rule on the motion.
All of these notice requirements and court dates means it can take months to get the relief you’re are questing in your motion.
There is a way, however, 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.”
So, an emergency motion gets heard whenever the judge is ready to have it heard. Most judges have a standing order about when they will hear an emergency motion like, “all emergencies are to be heard at 9AM.” The Cook County Judges’ standing orders can be found here. In practicality, most judges understand that emergencies by their very nature don’t happen on time and are happy to hear your motion…but usually at the end of the call when all the scheduled cases are done.
An emergency motion must state exactly why it is an emergency. The emergency nature of the motion must be described by the party in a signed affidavit that is attached to the emergency motion.
The first thing a judge will do before hearing an emergency motion is decide whether it is an emergency or not. A judge will often refuse to hear the substance of an emergency motion by simply saying, “This is not an emergency.” The integrity and brevity of your lawyer’s argument is essential in getting an emergency motion fully heard.
Regular motions require that the other side receive notice of the motion or the motion will not be heard by the court. Emergency motions do not require notice perCook County Court Rule 2.2(a) which reads:
“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.”
In reality, in the age of email and fax, you can give sufficient notice to anyone instantly and lawyers routinely call each other to advise that they are coming in on an emergency motion as a courtesy to the other lawyer’s schedule.
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 have informal agreements between each other during the initial court process. These informal agreements are how the parents manage until an Allocation of Parenting Time andParenting Responsibilities is entered by the court. A miscommunication during this stage can often provoke an emergency motion to be filed by either party to clarify something that needs to be done 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 December 25 this year. You should have dealt with this earlier. I find this not to be an emergency.”
Emergency motions are always accepted when the children maybe 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.