An Illinois divorce case starts with a Petition For Dissolution Of Marriage. Upon that filing, the opposing party is required to file an Appearance and a Response To the Petition Of Dissolution Of Marriage. After that, nothing is really required to happen in divorce court for a while
But when something is required, either party may not be prepared for that court date. If a party is not prepared, they must get a continuance of that court date. So, how do you ask for and get a continuance in an Illinois divorce court?
A continuance is not a right in an Illinois divorce court. A continuance is a privilege in an Illinois divorce court. But, with the right steps, your motion for continuance will be granted in your Illinois divorce case.
“A litigant has no absolute right to a continuance; rather, the decision to grant or deny a continuance is within the sound discretion of the trial court.” In re Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996)
Continuance During The Pendency Of An Illinois Divorce Action.
The parties are likely to file motions for temporary relief to resolve matters while the divorce is proceeding but not yet filing. The motions will get court dates for presentment, continued for status on responses and then finally set for hearing.
This is a lot of time. It can take months just for a motion for temporary relief to be heard in an Illinois divorce case.
Still, sometimes someone needs more time to prepare or answer. They need a continuance.
Most of the time, the opposing side will agree to a continue the manner.
“Lawyers shall agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided that the clients’ legitimate rights will not be materially or adversely affected.” Cook County Court Rule 13.11(b)(iv)
The court will almost always allow an agreed continuance for temporary non-trial matters.
If the request for a continuance is not agreed, the court will grant a party’s motion for continuance for “good cause.”
“The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” Ill. Sup. Ct. R. 183 (eff. Feb. 16, 2011).
“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” 735 ILCS 5/2-1007
While temporary motions are being filed, answered and heard, the parties should also be conducting discovery: the exchange of and search for documents necessary to prove a party’s claims.
These documents are often held by third parties and are not immediately available. Because these documents may be necessary evidence for a temporary hearing, the absence of the document will be good cause for continuance of the matter.
In short, continuances are liberally granted for temporary matters in an Illinois divorce. That is because everything is temporary until the trial. Even if you’re not granted a continuance for a temporary hearing, the matter can always be reheard in a motion to reconsider or a motion to modify. Temporary orders are…temporary. In fact, temporary orders are extinguished upon the entry of a final Judgment of Dissolution of Marriage.
Continuances Because Of The Withdrawal Of An Attorney In An Illinois Divorce
Continuances are often sought when counsel withdraws. Supreme Court Rule 13 requires that a litigant be given a 21 day continuance to attempt to find a new attorney or to file their own appearance.
“Unless another attorney is, at the time of such withdrawal, substituted for the one withdrawing, the party shall file in the case within 21 days after entry of the order of withdrawal a supplementary appearance, stating therein an address at which the service of notices or other documents may be had upon him or her. A self-represented litigant may supply an e-mail address for service, pursuant to Rule 11(b). In the case of the party’s failure to file such supplementary appearance, subsequent notices and filings shall be directed to the party at the last known business or residence address.” Ill. S. Ct. R. 13(c)(2)
When a new attorney is hired, the new attorney needs to get up to speed with what is going on in the case and courts are typically happy to allow time for that. But, Illinois divorce courts are allowed to deny a continuance to a new attorney and tell the new attorney, “you take the case as you find it.”
“The denial of a motion for continuance to obtain new counsel is not an abuse of discretion ‘if new counsel is not specifically identified or does not stand ready, willing, and able to make an unconditional entry of appearance instanter.’ ” People v. Antoine, 335 Ill. App. 3d 562, 580 (2002) (quoting People v. Burrell, 228 Ill. App. 3d 133, 142 (1992))
Continuance Of A Trial In An Illinois Divorce
The continuance of an Illinois divorce trial is another story. The standards for continuance are much stricter for continuing a trial.
The standards for a continuance are stricter “once the case has reached the trial stage because of the potential inconvenience to the witnesses, the parties, and the court.” In re Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996)
“The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules.” 735 ILCS 5/2-1007
The “rules” this statute is referring to are the Illinois Supreme Court Rules and the local circuit court rules.
“No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay.” Illinois Supreme Court Rule 231(f)
The rules then lay out what is a sufficient excuse for a continuing an Illinois divorce trial.
“If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured.” Illinois Supreme Court Rule 231(a)
So, if evidence is necessary but not available AND you didn’t have an earlier opportunity to get that evidence…then you can get a continuance.
However, just because you think evidence is important or “material” does not mean the court will agree that the missing evidence warrants a continuance.
“If the court is satisfied that the evidence would not be material, or if the other party will admit the affidavit in evidence as proof only of what the absent witness would testify to if present, the continuance shall be denied unless the court, for the furtherance of justice, shall consider a continuance necessary.” Illinois Supreme Court Rule 231(b)
Truthfully, courts grant continuances based on whether the party was duly prepared despite the circumstances (illness, emergency, etc). The “decisive factor is whether the party seeking the continuance has shown a lack of diligence in proceeding with the cause.” In re Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996)
“Factors a court may consider in determining whether to grant a continuance request by a [litigant] include the movant’s diligence, the [litigant’s] right to a speedy, fair and impartial trial and the interests of justice. Other relevant factors include whether counsel for defendant was unable to prepare for trial because he or she had been held to trial in another cause, the history of the case, the seriousness of the charges, as well as docket management, judicial economy and inconvenience to the parties and witnesses.” People v. Walker, 232 Ill. 2d 113, 125-26 (Ill. 2009)
In the end, an Illinois divorce court can do whatever it wants.
“The court may on its own motion, or with the consent of the adverse party, continue a cause for trial to a later day.” Illinois Supreme Court Rule 231(e)
If a continuance is granted, the party requesting the continuance is going to pay the costs of the other party who showed up for trial ready that day.
“When a continuance is granted upon payment of costs, the costs may be taxed summarily by the court, and on being taxed shall be paid on demand of the party, his agent, or his attorney, and, if not so paid, on affidavit of the fact, the continuance may be vacated, or the court may enforce the payment, with the accruing costs, by contempt proceedings.” Illinois Supreme Court Rule 231(g)
How To Get A Continuance In An Illinois Divorce Case
If you need a continuance in your Illinois divorce case, it better be your first motion for continuance.
Secondly, you’ll need to show the court that you were prepared but for this unforeseen circumstance.
If the cause was foreseeable, a big heartfelt apology for not foreseeing the issue that is the basis for the continuance will be necessary. An earnest apology goes a long way in an Illinois divorce court.
Finally, the motion for continuance can be filed as an emergency motion so the judge will hear about the conditions that require a continuance as soon as possible.
Most Illinois divorce judges are very gracious and happy to offer continuances for good cause. Few divorce judges will extend this courtesy on a repeated basis. Your reputation and your lawyer’s reputation matter greatly when asking the court for any kind of leniency.
A Motion To Stay Proceedings In An Illinois Divorce
Maybe the continuance necessary is not anyone’s fault. Maybe the case should just be put on pause until something significant happens that will affect the outcome of the rest of the case.
A stay is “the postponement of halting of a proceeding, judgment, or the like.” Black’s Law Dictionary (11th ed. 2019)
“An order staying proceedings preserves the status quo existing on the date of its entry and does not address the merits of the underlying dispute. The trial court may stay proceedings as part of its inherent authority to control the disposition of cases and may consider factors such as the orderly administration of justice and judicial economy in deciding whether to grant a stay. The party requesting a stay bears the burden of showing that the benefits of a stay outweigh any potential harm that may accrue to the party against whom it is operative, and if there is a fair possibility that the stay will damage the opposing party, the party seeking the stay must make a clear showing of hardship or inequity from being required to go forward with the case.” Health Care Service Corp. v. Walgreen Co., 249 NE 3d 481 – Ill: Appellate Court, 1st Dist., 3rd Div. 2023 (citations omitted)
For example, one can imagine a divorce court staying proceedings until the marital house is sold to determine what net proceeds are available for payment of expenses, division of assets and where the parties will live after the sale.
What If You Do NOT Get A Continuance In An Illinois Divorce Case
If your motion for continuance is not granted, you need to prepare for the next court date because it will proceed with or without you. You do not have a due process right to a continuance.
“A long line of cases has held that the denial of a motion for a continuance presents no due-process issue.”
In re S.B., 2015 IL App (4th) 150260, ¶ 21
If you need a continuance and you are reading this article, it might be too late. But then again, it might not be. Give my Chicago, Illinois law firm a call to schedule a quick no-obligation consultation regarding your Illinois divorce case.
