Divorce orders catch two parties in a state of flux. Money is coming in and going out. Kids are growing up. By the time a disagreement between two divorcing or divorced parties is brought to court, the issue is often resolved by not being relevant anymore.
Legal issues that no longer have current relevant facts to consider are described as “moot”
For an issue to be “moot” it “describ[es] a point or question that is subject to debate, dispute, or uncertainty, and typically used in legal contexts to refer to issues that are hypothetical or of no practical importance.” Black’s Law Dictionary (11th ed. 2019)
In Illinois divorce cases, moot issues usually involve money owed that was paid months after it was due or parenting issues involving events that occurred long before the parties could get to court.
Illinois courts are busy! They cannot deal with issues that are now irrelevant and are only hypothetical.
“As a general rule, courts in Illinois do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided.” In re Alfred H.H., 233 Ill. 2d 345, 351 (2009)
An issue in a divorce case may be moot…but it is still annoying. An Illinois divorce court’s declaration that an issue is moot will only encourage the offending party to fail to comply with orders and wait for the issue to become moot before the court can review their bad behavior.
An issue being dismissed as moot can be overcome by invoking the doctrine of “capable of repetition, yet evading review.”
“The courts in Illinois have held that where a case involves an event of short duration which is “capable of repetition, yet evading review,” it may qualify for review even if it would otherwise be moot. To receive the benefit of this exception, the complaining party must demonstrate that: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” In re Barbara H., 183 Ill. 2d 482, 491 (1998)
Virtually every violation of an Illinois divorce court’s order can fall under this exception. Especially, if it has occurred more than once.
Additionally, the issues that come up and (and then go away) in family law are usually not exclusive to one family. For example, One can imagine the flurry of vaccine-related family court litigation in the COVID era that needed a standard rule. Precedents need to be set for all the families in Illinois.
Courts can evade mootness to set a precedent via the public interest exception.
“A…court may nevertheless review an otherwise moot issue pursuant to the public interest exception to the mootness doctrine. Application of the public interest exception requires (1) the existence of a question of public importance; (2) the desirability of an authoritative determination for the purpose of guiding public officers in the performance of their duties; and (3) the likelihood that the question will recur.” In re J.T, 221 Ill. 2d 338, 350 (Ill. 2006)
Trial court’s decisions are not authoritative to other courts so the public interest exception will rarely apply…unless the parties are overt in their intent to appeal or certify the question at hand.
The court’s preferred sanction for all court order violations, moot or not, is awarding attorney’s fees to the non-violating party.
“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)
More specifically, the non-violating spouse can insist their motion to enforce proceed despite mootness. After a hearing on the moot issue, the court MUST award attorney’s fees.
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750 ILCS 5/508(b)
The rules acknowledge that matters can be heard after proscribed filing periods.
“No provision in these rules or in the Civil Practice Law prescribing a period for filing a motion requires that the motion be heard within that period. Either party may call up the motion for disposition before or after the expiration of the filing period.” Ill. S. Ct. R. 184
Why not also hear a matter after it has been deemed moot?
The issue of missed parenting time is particularly sensitive to the being declared moot. None of us own a time-machine. Time with children that is lost…is lost forever.
Illinois law provides for make-up time to resolve the issue of lost visitation with children than cannot be resolved due to the simple passage of time.
“If the court finds by a preponderance of the evidence that a parent has not complied with allocated parenting time according to an approved parenting plan or a court order, the court, in the child’s best interests, shall issue an order that may include one or more of the following:
…
a requirement that makeup parenting time be provided for the aggrieved parent or child under the following conditions:(A) that the parenting time is of the same type and duration as the parenting time that was denied, including but not limited to parenting time during weekends, on holidays, and on weekdays and during times when the child is not in school;(B) that the parenting time is made up within 6 months after the noncompliance occurs, unless the period of time or holiday cannot be made up within 6 months, in which case the parenting time shall be made up within one year after the noncompliance occurs” 750 ILCS 5/607.5(c)(5)
In Illinois divorce law, “crying over split milk” is allowed. Don’t let bad actors get away with bad behavior just because they think “time has healed all wounds.” Overcome the mootness doctrine and get your attorney’s fees paid, get precedents set and get more time with your child(ren).
To learn more contact my Chicago, Illinois family law firm to discuss your issue with an experienced Illinois divorce attorney.
