Posted on May 6, 2023

Temporary Restraining Orders vs. Preliminary Injunctions In An Illinois Divorce

In a divorce, people do things they should NOT do. An Illinois divorce court has a strong bias towards preventing bad behavior and towards keeping the peace.

In an Illinois divorce, there are no standing orders which prevent people from doing anything with property. Automatic laws that forbid a person’s right to do what they wish with their property have been deemed unconstitutional. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993)

In order to keep a spouse from doing something during an Illinois divorce, the other spouse must ask for a Temporary Restraining Order (TRO) or a Preliminary Injunction.

“Either party may move for…a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:” 750 ILCS 5/501(a)(2)

Both motions request the court to forbid some kind of behavior. The difference between an Temporary Restraining Order and Preliminary Injunction in an Illinois divorce is simple Temporary Restraining Orders can be presented to the court without notice.

Temporary Restraining Orders In An Illinois Divorce

Some emergencies are so severe that you cannot let the other party know that you have an issue with their behavior. Freezing a bank account. Preventing the sale of a unique item. Stopping the destruction of a valuable (to you) object. If the other party was given notice, they would spend, sell, and/or destroy in advance of the hearing.

“A TRO is an emergency remedy,” (Bradford v. Wynstone Property Owners’ Ass’n, 355 Ill. App. 3d 736, 739 (2005))

The purpose of a temporary restraining order “is to preserve the status quo until the court can conduct a hearing to determine whether it should grant a preliminary injunction” American Federation of State, County, and Municipal Employees, Council 31 v. Ryan, 332 Ill. App. 3d 965, 966 (2002)

Notice is preferable…but with a Temporary Restraining Order notice is optional within reason.

“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.” 735 ILCS 5/11-101

Even if a court deems notice appropriate for a temporary restraining order literally any notice will suffice.

“Informal, telephonic notice has been recognized as sufficient notice [for a temporary restraining order]” Amer. Warehousing Services v. Weitzman, 169 Ill. App. 3d 708, 715 (Ill. App. Ct. 1988)

The notice requirements for Motions For Temporary Restraining Orders are almost identical to the notice requirements for Emergency Motions. So, it’s probably best to label all Motions for Temporary Restraining Orders as “Emergency Motion For Temporary Restraining Order” and follow your local circuit court’s emergency filing requirements.

Temporary Restraining Orders can be granted with no or limited notice and Temporary Restraining Orders expire quickly. Therefore, evidentiary hearings are not required.

“The classification of an order as a TRO or a preliminary injunction will be determinative of the type of hearing required for the issuance of the order….a hearing on a motion for a TRO is a summary proceeding, and even if the defendant files a verified answer, the court still proceeds in a summary fashion, hearing only arguments on the motion for the TRO. ” Passon v. TCR, Inc., 242 Ill. App. 3d 259, 263 (Ill. App. Ct. 1993)

Once a Temporary Restraining Order is issued, the Temporary Restraining Order only lasts for 10 days.

Temporary Restraining Orders can be extended beyond 10 days “as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the granting of the extension shall be stated in the written order of the court.” 735 ILCS 5/11-101

After ten days (or a reasonable time as agreed or determined by the court), a Temporary Restraining Order requires notice and hearing because the issue will now be handled as a preliminary injunction.

“In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set for hearing at the earliest possible time” 735 ILCS 5/11-101

“To allow a TRO of unlimited duration is to have a preliminary injunction without allowing the defendant a fair opportunity to show why an injunction should not be issued.” Abdulhafedh v. Sec’y of State, 161 Ill. App. 3d 413, 417

Sooner or later, a TRO must have proper notice and a proper hearing. At such time, the TRO becomes a preliminary injunction.

“[W]here a TRO is issued after both notice and a hearing [the TRO] is the functional equivalent of a preliminary injunction.” County of Boone v. Plote Construction, Inc., 2017 IL App (2d) 160184

Preliminary Injunctions In An Illinois Divorce

Preliminary injunctions “restrain[] any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued” 750 ILCS 5/501(a)(2)(i)

“Generally, a party seeking a preliminary injunction must demonstrate that it: (1) has a clearly ascertainable right that needs protection; (2) will suffer irreparable harm without the protection; (3) has no adequate remedy at law; and (4) is likely to succeed on the merits.” In re Marriage of Centioli, 781 NE 2d 611 – Ill: Appellate Court, 1st Dist., 4th Div. 2002

The above fours tests are the proof needed for a preliminary injunction. For example, a party does NOT need to prove that a diamond is marital property which should be awarded to a particular spouse. The party merely needs to prove that the diamond might be marital, the diamond cannot be replaced or repurchased and that the diamond might be awarded to the party requesting the preliminary injunction.

The preliminary injunction is there merely to preserve the right to that hypothetical diamond by one of the parties for later, full determination by the court. In the meantime, there just a few standards of proofs which must be met.

In a divorce, preliminary injunctions are about keeping someone from doing something. This always means preventing someone from doing something with some kind of property.

“Each spouse has a species of common ownership in the marital property which vests at the time dissolution proceedings are commenced and continues only during the pendency of the action.” 750 ILCS 5/503(e)

Therein lies the ascertainable right.

“Thus, during the pendency of the divorce proceedings [each litigant] has a vested interest in all marital property regardless of which party holds title to it.” In re Marriage of Centioli, 781 NE 2d 611 – Ill: Appellate Court, 1st Dist., 4th Div. 2002

Note that a Temporary Restraining Order requires that the litigant allege approximately all the same factors but proof is not required merely a “verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant” 735 ILCS 5/11-101

Irreparable injury is defined as “harm that cannot be prevented or fully rectified by the final judgment after trial.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)

If an “injury” can be cured by available money later in the court process…it is not an irreparable injury.

This does not give the transgressor carte blanche to be a jerk so long as they can pay for their jerkiness later.

“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).

This same “repairable injury” exception satisfies the next prong “an inadequate remedy a law exists.” If a later award of money can be granted, an adequate remedy at law probably exists. But justice delayed is justice denied (within reason).

“In saying that the plaintiff must show that an award of damages at the end of trial will be inadequate, we do not mean wholly ineffectual; we mean seriously deficient as a remedy for the harm suffered.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)

If the matter at issue is at all unique, there is no adequate remedy of law. For example, no two pieces of land are the same so “[w]here land is the subject matter of the agreement, the inadequacy of the legal remedy is well-settled.” Happy R Secs., LLC v. AgriSources, LLC, 2013 IL App (3d) 120509

Preliminary Injunctions are temporary (more on that later), just less temporary than Temporary Restraining Orders. The likelihood that the litigant will succeed on the merits need not be a strong one…because the injunction can be dissolved later should new information come to light.

To show a likelihood of success on the merits, a party only needs to raise “a fair question about the existence of his right and that the court should preserve the status quo until the case can be decided on the merits.” In re Estate of Wilson, 373 Ill. App. 3d 1066, 1075

Finally, there is a fifth factor which must be considered (but usually the party fighting the preliminary injunction brings it up) whether the preliminary injunction does more harm than good on balance.

“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

After consideration of the balance of equities, the court may decide not to order the relief.

“Accordingly, a court using its equitable powers may refuse to grant specific performance where the remedy would cause a peculiar hardship or inequitable result.” Schwinder v. Austin Bank, 348 Ill. App. 3d 461, 477 (Ill. App. Ct. 2004)

Even third parties who have nothing to do with the case need their interests considered when balancing the equities.

“The interest of and harm to nonparties…are among the equities to be balanced.” County of Kendall v. Rosenwinkel, 353 Ill. App. 3d 529, 541 (Ill. App. Ct. 2004)

When Do Preliminary Injunctions Expire In An Illinois Divorce?

There was much discussion above about how a preliminary injunction is not the end of the world because it can be reversed in a final hearing.

In a divorce, the final hearing is the trial or an actual evidentiary hearing on the issue.

Preliminary injunctions are temporary orders. A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

After a trial or full evidentiary hearing “the temporary order has fulfilled its purpose and is superseded by the final—or permanent—order….Once the trial court enters the final order, an assumption arises that the court has thereby adjusted for any inequity in its temporary orders.” In re Marriage of Fields, 283 Ill. App. 3d 894, 901 (1996).

If not a full trial, the preliminary injunction should be dissolved when the “ascertainable right” prong is finally and irrevocably determined by the court.

If you are considering filing a Temporary Restraining Order or a Preliminary Injunction in your Illinois divorce, contact my Chicago, Illinois family law firm to speak to 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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