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What Is A Motion In An Illinois Divorce?
What happens after a Petition For Dissolution Of Marriage is filed? People don’t just cooperate and work together on the divorce. Divorcing parties ignore each other at best and hate each other at worst. So, how is a divorce supposed to proceed when so much is required of both parties: exchanging discovery, determining parenting time and paying support. In order to get these short term items accomplished, the parties must file motions. So, what is a motion in an Illinois divorce.
What Is A Motion?
A motion fills in the blanks of a pending divorce. A lot of work has to happen during a divorce to ensure that the parties are cooperating, complying and working towards final resolution. Only truly uncontested divorces do not require a motion to be filed during the pendency of divorce. In order to ensure that the parties do what they must until the divorce is finalized, the parties will each file their own respective motions.
A motion “is an application to the court for a ruling or an order in a pending case.” In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993).
“The form and contents of motions, notices regarding the same, hearings on motions, and all other matters of procedure relative thereto, shall be according to rules.” 735 ILCS 5/2-620
Those “rules” are numerous in Illinois: the Illinois Supreme Court Rules, the County Court Rules, the individual judge’s standing order. All must be reviewed when filing a motion in an Illinois divorce.
A small error in a motion will usually be excused because a motion can be for almost anything. The possibilities are endless and depend on the facts of each case. The idea behind a motion is that a party is asking for something to happen before the divorce is finally resolved at trial or final settlement.
The possibilities for motions in an Illinois divorce case is endless but here are some common examples.
A motion for default judgment
A motion to change venue
A motion for temporary child support
A motion for temporary maintenance
A motion for declaratory judgment
A motion for temporary parenting time
A motion for custody of a pet
A motion for injunctive relief
A motion for exclusive possession of the marital home
A motion for contribution to marital expenses.
A motion for interim attorney’s fees
A motion to appoint a Guardian Ad Litem
A motion to appoint a Parenting Coordinator
A motion to compel discovery
A motion for a protective order
When a motion is filed, the filer must also file proof that they provided notice of the motion to the opposing party.
“[W]ritten motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared” Ill. S. Ct. R. 104
The court usually allows for a written answer to a motion before setting the matter for hearing or pretrial. Motions are not required to have an answer but it’s always a good idea to answer an opposing party’s motion.
“[T]he failure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion” In re Marriage of Fahy, 208 Ill. App. 3d 677, 685 (Ill. App. Ct. 1991)
Some motions are based on emergencies and are allowed to be heard immediately without any immediate input from the opposing side.
A motion is then resolved via a pretrial hearing or an evidentiary hearing.
Pretrying A Motion In An Illinois Divorce
A pretrial hearing is usually held “in camera” which is approximately Latin for“the judge’s office.” Pretrials are efficient and therefore scheduled promptly. In divorce actions, there is usually little dispute as to the facts. People make what they make and have what they have. When it comes to parenting issues, Guardian Ad Litems render to the court their observations and recommendations. In a divorce pretrial for a motion, a judge then presumes the lawyers and Guardian Ad Litem’s version of events are true and makes a recommendation based on those representations. If either party doesn’t want to adopt the judge’s recommendation, that party can have a formal evidentiary hearing on the motion.
Pretrials are not mandatory but they are encouraged. Your results will not be based on evidence but rather on the facts as you or your attorney explain the alleged facts to the judge in a summary fashion.
Evidentiary Hearings In An Illinois Divorce
An evidentiary hearing resolves a motion via presentation and introduction of evidence via the Illinois Rules of Evidence. The Illinois Rules of Evidence are complicated to the layman and the lawyer alike. Each piece of evidence requires foundation and authentication. Testimony (anything someone says) is still evidence and subject to these requirements. In family court, judges can allow any damned thing into evidence…unless an experienced trial lawyer is there to object.
Objections to proffered evidence are numerous. They include:
- Assumes facts not in evidence.
- Asked and Answered.
- Best evidence rule.
- Beyond the scope of direct / cross / redirect examination.
- Character evidence to prove a pattern of behavior.
- Compound question / double question.
- Confusing / vague / ambiguous.
- Counsel is testifying.
- Hearsay (which has dozens of exceptions)
- Improper impeachment.
- Lack of personal knowledge.
- Misstates evidence / misquotes witness / improper characterization of evidence.
- Pretrial ruling.
- Privileged communication.
These objections and their defenses are expected to be known by all parties participating in an evidentiary hearing. What’s more, the parties are expected to instantly object with the correct objection and the other party must instantly respond to that objection during the hearing. This takes experience and practice. I can’t emphasize how difficult it is to do correctly even for experienced attorneys
Does A Motion Have To Be Heard During An Illinois Divorce?
Sometimes, a motion is just to preserve a right and put the other party on notice that they should comply and, thus, render the motion moot.
“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
Upon the issue becoming moot, the movant can withdraw their motion or just let the motion expire when the divorce itself is settled.
But don’t wait too long. Some local rules require that motion be heard…or be abandoned by dismissal.
“The burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay.” Cook County Rule 2.3
The Order From A Motion During An Illinois Divorce
After the motion is heard, the court will issue a written order. “When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise. Orders and judgments may be prepared, presented, and signed electronically, if permitted by the Supreme Court.” Ill. Sup. Ct. R. 271
A motion that results in an order has the power of law. All the parties must follow that order. Failure to follow that order shall result in sanctions from the court. The order can be shown to the police and the police will follow the order.
Orders based on motions are temporary, though. 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)
These orders are so temporary that they are not supposed to influence the final decisions regarding parenting issues. A temporary order “does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;” 750 ILCS 5/501(d)(1)
Post-Decree Motions In An Illinois Divorce
The final divorce decree is called the Judgment For Dissolution Of Marriage. The Judgment For Dissolution Of Marriage incorporates one or two documents: The Marital Settlement Agreement and The Allocation of Parental Responsibilities. All previous orders are extinguished for the sake of clarity and finality.
But, people still live their lives after they get divorced. Their lives are rarely clear and final. Disagreements and unforeseen circumstances will come up. When they do, the parties must come to an out-of-court agreement or get a post-decree order from the same court that divorced them.
If the parties cannot agree, one party must file a post-decree motion. Again, the possible post-decree motions are almost limitless as virtually everything in a divorce is modifiable (except distribution of assets and waiver of maintenance).
A sample of possible post-decree motions in an Illinois divorce care are:
A motion to seal the court file
A motion to modify child support
A motion to enforce child support
A motion to modify maintenance
A motion to enforce maintenance
A motion to modify parenting time
A motion to enforce parenting time
A motion for supervised parenting time
A motion for reimbursement of children’s expenses
A motion for contribution to college expenses
A Petition For Rule To Show Cause For Indirect Civil Contempt
Most post-decree motions are based on some kind of modification of the final divorce documents or enforcement of the divorce documents. A post-decree motion is almost never a surprise to the non-movant.
Additionally, most final divorce documents require the parties to engage in mediation before filing any post-decree motions.