Posted on November 19, 2022

Motion To Stay After An Illinois Divorce Is Appealed

An old saying goes, “It ain’t over ‘till it’s over.” In an Illinois divorce, it’s not even over when it’s over. Either party has the option to appeal the case and the decisions rendered by the trial judge to the appropriate appeals court.

In Illinois, it is a right to appeal a divorce court’s decision.

“Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located” Ill. Const. Art. VI. Sec. 6

“Every final judgment of a circuit court in a civil case is appealable as of right.” Ill. Sup. Ct. R. 301

What happens to that decision, though, while the appeal is pending? If the decision is reversed by the appellate court, the parties will have to undo any steps they took following that decision.

What Is A Stay In An Illinois Divorce?

Broadly, any post-trial motion, effectively, stays a judgment in Illinois.

“A post-trial motion filed in apt time stays enforcement of the judgment.” 735 ILCS 5/2-1202(d)

A stay is “an order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding.” Black’s Law Dictionary (11th ed. 2019)

If either party does not agree with the circuit court’s decision to the point where they filed an appeal, that party certainly does not want the circuit court enforcing the order that was just appealed. Therefore, a stay on enforcement will be requested.

“A stay issued by the appellate court…suspends enforcement of a judgment, and is intended to preserve the status quo pending the appeal and to preserve the fruits of a meritorious appeal where they might otherwise be lost.” Stacke v. Bates, 562 NE 2d 192 – Ill: Supreme Court 1990

Perhaps Lisa Loeb said it best in her song “Stay

“🎶You’re just so scared to lose
And you say, stay🎶”
Loeb, Lisa. “Stay (I Missed You).” Lisa Loeb & Nine Stories, 1994

More specifically, there are two kinds of stays after an Illinois appeal: a stay of money judgment and a stay of non-money judgment.

Money judgment stays are simple. No one pays anyone anything until we know what they actually must pay post-appeal.

“The enforcement of a judgment for money only, or any portion of a judgment which is for money, shall be stayed only if a timely notice of appeal is filed and an appeal bond or other form of security, including, but not limited to, letters of credit, escrow agreements, and certificates of deposit, is presented to, approved by and filed with the court within the time for filing the notice of appeal or within any extension of time granted under paragraph (c) of this rule.” Ill. Sup. Ct. R. 305(a)

In the meantime, though, the person who just lost at the circuit level and is now appealing may be tempted to skip town…with the money while they still have it. In order to get a stay on a money judgment, the person who owes the money must post a bond.

“Notice of the presentment of the bond or other form of security shall be given by the judgment debtor to all parties. The bond or other form of security ordinarily shall be in an amount sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to accrue during the pendency of the appeal.” Ill. Sup. Ct. R. 305(a)

If the appealed issue is non-monetary, such as parenting-time or parental decision-making, then the appeal will stay that order…within reason.

“[T]he court may also stay the enforcement of any judgment, other than a judgment, or portion of a judgment, for money, or the enforcement, force and effect of appealable interlocutory orders or any other appealable judicial or administrative order. The stay shall be conditioned upon such terms as are just.” Ill. Sup. Ct. R. 305(b)

Even in a non-monetary dispute, an appeals court can still require a bond to be posted to keep everyone honest during the appeals process.

“The stay shall be conditioned upon such terms as are just. A bond or other form of security may be required in any case, and shall be required to protect an appellee’s interest in property.” Ill. Sup. Ct. R. 305(b)

The motion for stay must be made, initially, at the trial court level.

“[A]pplication for a stay ordinarily must be made in the first instance to the circuit court.” Ill. Sup. Ct. R. 305(d)

What Gets Stayed In An Illinois Divorce After An Appeal?

When an appeal gets filed, the circuit court receives a notice of the appeal and (hopefully) a motion to stay the appealed matters.

Appeals can take months to years to complete. In the meantime, a broken family needs to move on with their lives post-divorce. What can an Illinois divorce court continue to order while the appeal is pending and the stay is in place?

The burden of proving the necessity of the stay is on the party requesting the stay.

“[T]he party seeking a stay bears the burden of proving adequate justification for it.” Kaden v. Pucinski, 263 Ill. App. 3d 611, 615 (Ill. App. Ct. 1994)

This burden includes “showing that the benefits of the 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., 2023 IL App (1st) 230547, ¶ 21.

Initially, the decision to stay or not to stay is up to the circuit court.

“A notice of appeal is a procedural device filed with the trial court that, when timely filed, vests jurisdiction in the appellate court in order to permit review of the judgment such that it may be affirmed, reversed, or modified.  Once the notice of appeal is filed, the appellate court’s jurisdiction attaches instanter, and the cause of action is beyond the jurisdiction of the circuit court.  The circuit court, however, retains jurisdiction after the notice of appeal is filed to determine matters collateral or incidental to the judgment. This court has specifically recognized that a stay of judgment is collateral to the judgment and does not affect or alter the issues on appeal.” General Motors Corp. v. Pappas, 950 NE 2d 1136 – Ill: Supreme Court 2011

The word “collateral” gets used a lot in law for all sorts of purposes. Collateral means “supplementary” or “not direct in line, but on a parallel or diverging line” Black’s Law Dictionary (11th ed. 2019)

So, matters that are collateral to an appeal do not affect the appeal. They sort of exist…beside the appeal and not in the appeal or from it (if that makes sense?)

A motion to stay in the circuit court is like that. If the motion to stay cannot be said to affect the substance of the appeal and the issues of the appeal, the circuit court can still decide, independent of the appeals court, whether the order they just entered can be enforced or not.

“A stay of judgment is collateral to the judgment and does not affect or alter the issues on appeal.” Steinbrecher v. Steinbrecher, 759 NE 2d 509 – Ill: Supreme Court 2001

Circuit courts may deny a motion to stay and proceed with enforcing their own orders…whether you appealed or not.

In case of a denial of a stay, the appealer can, again, go to a higher court and request a stay from the appellate court.

“The Illinois Supreme Court rules provide clear direction regarding stay of judgments and the recourse available in the event a trial court denies a stay of judgment. Rule 305(d) authorizes litigants to make a motion in the reviewing court for a stay of judgment following denial of the same motion by the trial court.” Steinbrecher v. Steinbrecher, 759 NE 2d 509 – Ill: Supreme Court 2001

“A motion for a stay may be made to the reviewing court, or to a judge thereof, but such a motion must show that application to the circuit court is not practical, or that the circuit court has denied an application or has failed to afford the relief that the applicant has requested, and must be accompanied by suggestions in support of the motion and a supporting record (Rule 328), if the record on appeal has not been filed.” Ill. Sup. Ct. R. 305(d)

“If a stay is granted by the reviewing court or a judge thereof [after a denial of the stay by the circuit court], the clerk shall notify the parties and transmit the certified order granting the stay to the clerk of the circuit court or administrative agency.” Ill. Sup. Ct. R. 305(d)

Trying a case, appealing a case, staying the decision of the circuit court pending appeal and possibly appealing the circuit court’s decision to stay pending appeal…this is A LOT! If you’re even considering an appeal, much less a stay pursuant to an appeal, you need help. Contact my Chicago, Illinois family law firm for a free consultation with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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