Motion To Maintain The Status Quo In An Illinois Divorce

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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Preserving The Status Quo In An Illinois Divorce

Motion To Maintain The Status Quo In An Illinois Divorce

Often in the initial weeks after filing a Petition For Dissolution of Marriage in Illinois, one of the parties to the freshly-filed divorce action will become worried that big changes are on the horizon and will request that the status quo be maintained.

Big changes are on the horizon! A divorce will be happening shortly which will divide all of your assets, establishing support obligations and govern your relationship with your children.

During the pendency of an Illinois divorce, an Illinois divorce court has great powers to provide temporary relief.

An Illinois divorce court may order temporary support, exclusive possession of a home or “other appropriate temporary relief” 750 ILCS 5/501(a)(3)

This broad statute is used to request that the status quo remain in place until further appropriate investigation reveals the needs of the divorcing parties and their capacity to meet those needs.

Preserving the status quo is unfathomably broad and requires a court to drink from the firehouse that is a divorcing couple’s life. Mortgages, children’s tuition, utilities, and car payments all must be paid. Access to the home, personal affects and children have to be maintained. The day-to-day routines and obligations of a married couple’s life will now be put on paper with the caption “Motion To Preserve The Status Quo”

How To Get An Order To Preserve The Status Quo In An Illinois Divorce

An order which maintains the status quo is actually a request for a preliminary injunction.

“The primary purpose of a preliminary injunction is to preserve the status quo until there can be a final hearing on the merits. In this regard, the term “status quo” has been consistently defined by the courts as ‘the last actual, peaceful, non-contested status which preceded the pending controversy.’ Generally, preservation is accomplished by keeping everything at rest. However, in certain circumstances, a state of rest may be fatal to the plaintiff’s rights.” In re Marriage of Sherwin, 463 NE 2d 755 – Ill: Appellate Court, 1st Dist. 1984

Injunctions are a court ordered prohibition on either party to NOT do something. This is America. You can do what you want…until you’ve been ordered not to through due process of law.

“Because injunctive relief is an exceptional remedy, it is not granted as a matter of course. Instead, courts must exercise extreme caution and grant such relief only after the plaintiff has established the existence of a certain and clearly ascertainable legal right, irreparable harm and an inadequate remedy at law.” In re Marriage of Sherwin, 463 NE 2d 755 – Ill: Appellate Court, 1st Dist. 1984

“In order to show entitlement to a preliminary injunction, the moving party bears the burden of showing (1) a certain and clearly ascertainable right in need of protection, (2) irreparable injury without injunctive relief, (3) an absence of adequate legal remedies, and (4) a likelihood of success on the merits.” In re Marriage of Rayfield, 221 Ill. App. 3d 763, 766 (1st Dist. 1991).”

Therefore, in order to issue an order to preserve the status quo, all 4 prongs of the this test must be met.

“An ascertainable right in need of protection” should be easy to prove. Divorcing people need a place to stay, access to money, and a preservation of the marital state. All of which a preliminary injunction can provide.

“Irreparable harm” is trickier. Status quo usually means preserving some matter which is ultimately financial. Money is fungible. Money spent foolishly today can be repaid in the future.

“Irreparable harm” can be established by an ongoing pattern of behavior. After all, if the offending behavior doesn’t stop now…when will it ever stop?

“Irreparable harm does not mean injury that is beyond repair or beyond compensation in damages, but rather denotes transgressions of a continuing nature.” Tamalunis v. Georgetown, 185 Ill. App. 3d 173, 190 (4th Dist. 1989) citing SSA Foods, Inc. v. Giannotti, 105 Ill. App. 3d 424, 428 (1st Dist. 1982).

“Irreparable harm” can also be established by a credible threat of future behavior.

“The requirement of the showing of imminent injury is not satisfied by proof of a speculative possibility of injury and ‘such relief will not be granted to allay unfounded fears or misapprehensions.’ Smith Oil Corp. v. Viking Chemical Co., 127 Ill. App. 3d 423, 431 (2d Dist. 1984) citing Barco Manufacturing Co. v. Wright, 10 IlI. 2d 157, 166 (1956).

“An absence of adequate legal remedies” can be argued if the possible damage from deviating from the status quo is terribly uncertain.

“A legal remedy is inadequate where damages are difficult to calculate at the time of hearing.” In re Marriage of Hartney, 355 Ill. App. 3d 1088, 1090 (2d Dist. 2005) citing In re Marriage of Joerger, 221 Ill. App. 3d 400, 407 (4th Dist. 1991).

In such a case, “Perceived harm to a party’s potential interest in an asset can be adequately protected by a court’s instruction.” In re Marriage of Rayfield, 221 Ill. App. 3d 763, 767 (1st Dist. 1991).

The 4th prong in granting preliminary injunctive relief, “a likelihood of success on the merits” has been deemed not applicable in motions to maintain the status quo. There is no “succeeding” when you’re preserving the status quo…there is merely the unchanged status quo.

If a requested order does “not alter the status quo, [a party is] not required to show he would likely prevail on the merits after full hearing” In re Marriage of Joerger, 581 NE 2d 1219 – Ill: Appellate Court, 4th Dist. 1991

Finally, a court must determine that preserving the status quo is, on balance, the right thing to do for both parties.

“In addition, the trial court must balance the equities or relative inconvenience to the parties and determine thereby whether a greater burden will be imposed on the defendant by granting the injunction than on the plaintiff by denying it” In re Marriage of Schwartz, 475 NE 2d 1077 – Ill: Appellate Court, 1st Dist. 1985

Courts must take care to ensure that any order to preserve the status quo will not actually change the actual status quo. This is extraordinarily hard to ensure when a court has no first-hand knowledge of “the last actual, peaceful, non-contested status which preceded the pending controversy.”

“A preliminary injunction…is not proper where it tends to change the status quo of the parties rather than preserve it.” In re Marriage of Schwartz, 475 NE 2d 1077 – Ill: Appellate Court, 1st Dist. 1985

Even if an order to preserve the status quo is granted it will be temporary until a final hearing on the merits of the divorce case.

“A preliminary injunction is merely provisional in nature, its office being merely to preserve the status quo until a final hearing on the merits.” In re Marriage of Schwartz, 475 NE 2d 1077 – Ill: Appellate Court, 1st Dist. 1985

Motion To Preserve The Status Quo vs. A Notice Of Dissipation In An Illinois Divorce

Many motions to preserve the status quo are actually motions to “not spend all of our money.”

“In the context of a dissolution of marriage proceeding, injunctions are utilized to maintain the status quo so that neither party may dissipate the marital estate or place the property beyond the court’s adjudicatory power and prevent the court from distributing the marital property in its final decree.” Morrison v. Morrison, 365 Ill. App. 3d 1095 (1st Dist. 2006).

“In a marriage dissolution proceeding, it is proper to prevent one spouse from secreting or disposing of marital assets” Erlich v. Lopin-Erlich, 553 NE 2d 21 – Ill: Appellate Court, 1st Dist. 1990

A motion to preserve the status quo may be an appropriate way to prevent a spouse from spending marital assets…if the other spouse’s share of that money can never be repaid (see irreparable injury discussion above). Otherwise, a notice of dissipation can adequately resolve any inappropriate expenditures during the pendency of a divorce.

“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992

In the final adjudication of an Illinois divorce, anIllinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)

If you are worried about your spouse spending money frivolously during the divorce, they were probably also spending money frivolously before the divorce…and you can get some of that back by filing a notice of dissipation.

“[A] notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;

(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;

(iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules;

(iv) no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage” 750 ILCS 5/503(d)(2)

You cannot claim dissipation of assets from during the “happy times” of your marriage. After all, you should have known about that spending…and were approving of it.

“[D]issipation is to be calculated from the time the parties’ marriage begins to undergo an irreconcilable breakdown, not from a date after which it is irreconcilably broken.” In Re Marriage of Holthaus, 387 Ill. App. 3d at 375

If you are in the initial throes of the divorce process in Illinois, you will need some level of security in the coming months. Make sure that the status quo, as the court orders, works for you not against you. Contact my Chicago, Illinois family law firm to learn more about what you can do initially and finally in your Illinois divorce.