Court orders 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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What Is An Order In An Illinois Divorce?

Court orders in an Illinois divorce

When two parties to an Illinois divorce cannot agree on an issue, they turn to an Illinois divorce judge to make the decision for them. That decision by the court is an “order.”

After every appearance in court, the judge will direct one or both parties to prepare an order reflecting the judge’s findings, rulings, subsequent future dates and what is to happen on those future dates.

“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

Orders don’t necessarily have to be written. Anything a judge says can be an order…and should be considered an order. Illinois courts “hold that the filing of written orders on motions other than during the course of trial is not mandatory but discretionary with the trial judge.” City of Chicago v. Westphalen, 93 Ill. App. 3d 1110, 1127 (Ill. App. Ct. 1981)

Nor does an order need to include a list of findings (reasons the judge granted the order) for the order to be valid. “It is not always necessary that the facts on which an order is based be set out as such in the body of the order. However, if findings of fact are made in the order it will be presumed that the court heard enough evidence to justify those findings.” Jones v. Jones, 48 Ill. App. 2d 232, 235 (Ill. App. Ct. 1964)

If there are findings in an order, expect those findings to be part of the record forever.

“A trial court’s findings of fact will not be disturbed on review unless those findings are against the manifest weight of the evidence” Corral v. Mervis Industries, Inc., 839 NE 2d 524 – Ill: Supreme Court 2005

Likewise, an order is valid and enforceable until the court modifies it or an appeals court orders it stricken or modified…no matter how bad the order is.

“Once a court has acquired jurisdiction, an order will not be rendered void merely because of an error or impropriety in the issuing court’s determination of the law.” In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (Ill. 1998)

The point of an order is that the parties follow the order. The plain language of the order governs the future actions of the parties reasonably with the circumstances the parties encounter in the future.

“It is an elementary principle of law that a court is vested with the inherent power to enforce its orders. Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order ” Smithberg v. the Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297-98 (Ill. 2000)(Citations Ommitted)

“Orders must be construed in a reasonable manner so as to give effect to the apparent intention of the trial court.” Kiefer v. Rust-Oleum Corp., 916 NE 2d 22 – Ill: Appellate Court, 1st Dist., 1st Div. 2009

“[A]n order will ordinarily be interpreted in the context of a subsequent enforcement proceeding.” In re Breslow v. Breslow, 306 Ill. App. 3d 41, 57 (Ill. App. Ct. 1999)

Failure to follow an Illinois court’s order will result in a finding of contempt which requires attorney’s fees and possibly jail for the party who violates the order.

Temporary Orders Vs. Final Orders

During the course of an Illinois divorce, there may be dozens of orders issued by an Illinois divorce judge. The point of all of these orders is to resolve temporary issues and lead the parties to either successful resolution or an organized trial.

Temporary orders are orders which are entered during the course of divorce litigation. There will almost always be motions for temporary exclusive possession of the marital home, temporary child support, temporary maintenance, temporary injunctions, and motions to maintain the status quo during the pendency of the case.

All of these orders will eventually be memorialized in a final judgment for dissolution of marriage, marital settlement agreement and/or allocation of parenting time and parental responsibilities.

Until then, temporary orders can be modified or revoked during the pendency of an Illinois divorce case.

“A temporary order entered under this Section:

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)

In theory, temporary orders are not to affect the court’s final determinations.

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)

The final trial or agreement adjusts all temporary orders into their final, cohesive form: the final order. The temporary orders are then considered to have ceased to exist.

After a full hearing on the final merits, “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).

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)

Temporary orders need to be distinguished from final orders because only final orders are appealable. “Every final judgment of a circuit court in a civil case is appealable as of right. ” Ill. Sup. Ct. R. 301

If an order is temporary, no one will review that order…except the judge who entered it originally. Obviously, it is more difficult to change someone’s mind about their own decision than it is to convince a third party that a judge was wrong.

Final orders are orders where there is nothing left to do by the court. This is a confusing concept in an Illinois divorce case because virtually everything about an Illinois divorce is modifiable in the future.

Judgments of dissolution of marriage and their incorporated documents are definitely final. “A judgment of dissolution of marriage or of legal separation or of declaration of invalidity of marriage is final when entered, subject to the right of appeal.” 750 ILCS 5/413

Other orders, however, may be deemed final should they sufficiently appear to be at an end.

“The test of finality lies in the substance, not the form of the order, and a divorce decree which terminates the litigation on the merits is final so long as all that remains is the execution of the order.” Pettit v. Pettit, 376 NE 2d 782 – Ill: Appellate Court, 4th Dist. 1978

For example, “[i]n proceedings involving child custody the order of the court or judge having competent jurisdiction is a final order, and is binding upon the parties under the same facts and so long as the same conditions exist as did at the time of the hearing and order.” Nye v. Nye, 105 NE 2d 300 – Ill: Supreme Court 1952

The rules about what constitutes a true final order can become quite byzantine and exact.

“Rule 304(a). That rule provides that an appeal cannot be taken from an order which disposes of fewer than all of the claims in the absence of an express written finding that there is no just reason to delay enforcement or appeal of the order” In re Marriage of Derning, 453 NE 2d 90 – Ill: Appellate Court, 2nd Dist. 1983

It is common for a court to enter a divorce and leave some ancillary matters such as attorney’s fees or future maintenance as reserved (to be dealt with later). This resolves the bulk of the divorce and leaves aside matters that could not truly be determined until the other matters were resolved.

Final orders that leave issues reserved remain final, except as to the reserved issues. “A divorce decree reserving the question of attorney’s fees, although final in other respects, is not final as to incidental questions expressly reserved.” Pettit v. Pettit, 376 NE 2d 782 – Ill: Appellate Court, 4th Dist. 1978

Agreed Orders Vs. Court Decisions In An Illinois Divorce Case

Orders must be further divided into either an agreed order or a decision from the court. Again the distinction between kinds of orders is important because of the appealability of either type of order.

“An agreed order is a recordation of the agreement between the parties and is not a judicial determination of the parties’ rights…. For this reason, an agreed order generally is not subject to appellate review. Such an order is conclusive on the parties and can be amended or set aside by one of the parties only upon a showing that the order resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the position or capacity of the parties, or newly discovered evidence.” In re Haber, 425 NE 2d 1007 – Ill: Appellate Court, 1st Dist. 1981

An agreed order can’t even be changed by a judge if there has been no substantial change in circumstances.

“[T]he general rule [is] that a settlement agreement may not be altered as to material terms without the consent of both parties, nor may a court on its own motion or accord alter such an agreed order A material term is one which has a legal effect different from the original language of the agreement.” EXCHANGE NAT’L BANK v. Sampson, 542 NE 2d 1303 – Ill: Appellate Court, 2nd Dist. 1989 (Citations Ommitted)

Just because a judge reviews and approves an agreed order does not make the order a decision by the judge.

“[A]greed order…was a consent decree. As such, the order was not a judicial determination of the parties’ rights but, rather, a recording of their agreement.” Felzak v. Hruby, 876 NE 2d 650 – Ill: Supreme Court 2007

Agreed orders are often entered into by attorneys for the parties. The attorney marking the order as agreed means the order is agreed whether the party agreed to it, personally, or not.

“[A]n agreed order [is] a recordation of an agreement between the parties, rather than a judicial determination of their rights. Such an order is not generally subject to appellate review; it is conclusive upon the parties and can be amended or set aside only on a showing that it resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the parties’ position or capacity, or newly discovered evidence.” Continental Illinois National Bank & Trust Co. v. Sax, 199 Ill. App. 3d 685, 695 (Ill. App. Ct. 1990)

Parties may have buyer’s remorse when they realize how permanent agreed order can be. At that point a party may decide they weren’t agreed after all…but it’s probably too late.

“In general, a party who retains an attorney holds out the attorney as an authorized agent to receive correspondence and notices, including notice of court proceedings. Furthermore, an attorney’s statements may bind the client to a settlement agreement when the client later claims to have misunderstood the terms of the settlement particularly when the settlement is made in open court or in the presence of the client. This authority is not unlimited, however, because an attorney who is hired to represent a client in litigation is not necessarily authorized to compromise the suit.” In re Marriage of Clarke, 550 NE 2d 1220 – Ill: Appellate Court, 1st Dist. 1990 (Citations Ommitted)

Orders and Estoppel In An Illinois Divorce Case

Once an order has been entered, that issue is settled absent a substantial change in circumstances.

For agreed orders, judicial estoppel prevents a party from taking a new position after they’ve already agreed to a previous position.

“Judicial estoppel provides that a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding.” Bidani v. Lewis, 675 NE 2d 647 – Ill: Appellate Court, 1st Dist., 3rd Div. 1996

Illinois courts really don’t like it when litigants change their positions for their own advantage…even as the facts are changing.

 “`[Judicial estoppel] is to be applied where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum designed for suitors seeking justice,” [citation], to prevent litigants from “playing fast and loose with the courts.”‘” Loffredi, 342 Ill.App.3d at 466, 277 Ill.Dec. 111, 795 N.E.2d 779, (Internal Quotations Omitted)

There’s an out from the constraints of judicial estoppel, however. If the order contains no findings

“[A] court can decline[] to apply judicial estoppel, in part, because the parties had entered into agreed orders that contained no admissions or findings of law or fact” Moy v. Ng, 864 NE 2d 752 – Ill: Appellate Court, 1st Dist., 2nd Div. 2007

If the order came from a judge and not an agreement, do not expect the judge to revisit the issue in the absence of a substantial change in circumstances. This can even be from an order from an entirely different kind of court in a different jurisdiction. Collateral estoppel will prevent any modification of the order.

The doctrine of collateral estoppel provides that an issue which has been addressed by a court of competent jurisdiction cannot be relitigated in a later action between the same parties or their privies in the same or a different cause of action.” Simcox v. Simcox, 546 NE 2d 609 – Ill: Supreme Court 1989

Orders are the end result of the Illinois divorce process. Each order in a divorce will govern the lives of you and your children. Take special care to make sure those orders improve your lives and don’t constrain your opportunities. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.