Family law is fraught with emergencies: holiday trips that have been thwarted, medical procedures that need to be done, money frittered away with no hope of recoup.
If you and your spouse, ex-spouse or ex-spouse-to-be, cannot communicate effectively about the day-to-day goings on of your lives…an emergency motion may be the vehicle for communication.
Furthermore, upon receipt of an emergency motion, you will have limited time to prepare for and defend against the emergency motion’s allegations.
What Is A Motion In an Illinois Divorce?
At the end of your divorce case, final documents such as a Judgment of Dissolution of Marriage, a Marital Settlement Agreement, and/or an Allocation of Parenting Time and Parental Responsibilities will be entered with the court. Those final documents will govern your relationship with your ex-spouse in perpetuity (or subsequent modification of those documents).
In the meantime, you may need your ex-spouse to do (or not do something) immediately.
A motion asks for the court for a ruling before the final documents are entered or a motion asks to enforce or modify those final documents as soon as possible. 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).
Motions get heard when the judge overseeing your divorce case is available. The judge may not have sufficient time to hear your motion for weeks or months from now.
If a motion needs to be heard immediately (in, at least, the filer’s opinion) the motion must be filed on an emergency basis.
What Is An Emergency Motion In An Illinois Divorce?
Emergency is a procedural term in a divorce court. Therefore, every emergency motion is governed by the local rules of Illinois divorce court you are within. While I practice all over Illinois, Cook County is the largest county (and my home base) therefore, I will reference Cook County local rules regarding emergencies.
“An emergency is defined as a sudden and unforeseen circumstance that may cause injury, loss of life, or damage to property and that requires urgent response and remedial action.” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
An emergency motion must define that “nature of the sudden or unforeseen circumstance.”
“Facts identifying the nature of the sudden or unforeseen circumstances which give rise to the emergency and the reason why the matter should take precedence shall be stated with particularity in an affidavit or verification in support of the emergency motion.” Cook County Court Rules 13.4(a)(ii)(b)
“Emergency Motions shall include an affidavit or verification stating facts that identify the nature of the sudden or unforeseen circumstances which give rise to the emergency and the reason why the matter should take precedence.” Cook County Domestic Relations Administrative Order 2021 AO 3(1)
You will not have much time to ponder the emergency motion and the appropriate defense to that emergency motion.
“Except for good cause shown, the movant shall provide a minimum of 24 hours’ notice to the opposing side” Cook County Domestic Relations Administrative Order 2021 AO 3(3)
You will not even get 24 hours, in reality. Emergency motions get filed and heard the next morning at 9 AM.
“All Emergency Motions shall be noticed for 9:00 a.m. before the regularly assigned calendar judge.” Cook County Domestic Relations Administrative Order 2021 AO 3(3)
So, the first thing you must do with your limited time is prepare your argument for why what is alleged in the emergency motion is, in fact, NOT an emergency.
What Is An Emergency In An Illinois Divorce?
One man’s emergency is another man’s Tuesday…especially if that man (or woman) is a domestic relations judge.
Simply work through a checklist of the definition of an emergency.
“An emergency is defined as a sudden and unforeseen circumstance that may cause injury, loss of life, or damage to property and that requires urgent response and remedial action.” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
Have the alleged facts occurred suddenly? Did they happen yesterday? Last week? Last month?
Are the alleged facts unforeseen? Did the parties know these facts were possible to occur? What did they do about those facts when they knew of their possibility?
Is there a real possibility of injury? Injury is a pretty broad term. Injury is “the violation of another’s legal right, for which the law provides a remedy.” Black’s Law Dictionary (11th ed. 2019)
Realistically, the opposing side would not be in court if there wasn’t an alleged injury. So, frame the question of injury by the next two factors “loss of life” or “damage to property”
Will there be loss of life? Of course not. Otherwise, this would be a matter for the police and paramedics.
Will there be damage to property? Even if there will be damage to property, how can the damage not be undone by later writing a check?
Is an urgent response and remedial action necessary? Often, an emergency situation is already over. There is no possible response, what’s done is done. Even a response is necessary, does the response need to be urgent? Most things financial (which is everything that doesn’t involve kids), can get resolved later. Money is fungible.
Furthermore, the local rules provides for situations which are NEVER emergencies.
“Absent the risk of imminent harm or severe prejudice, the following matters will generally not be heard as an emergency:
- Motions to establish or modify custody, set child support, paternity, or visitation, unless risk of imminent harm to child
- Motions seeking execution of documents (e.g. tax returns, quit claim deeds)
- Rules to show cause
- Motions to Vacate an Order entered by the judge assigned to the case unless it involves an issue of endangerment to child” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
In sum, the Cook County Domestic Relations Administrative Order 2021 AO 3(2) instructs that if the matter is financial, the matter is probably not an emergency and if the matter involves children who aren’t in imminent harm, the matter is probably not an emergency.
That is almost everything!
Just because you convince the judge that the matter is not an emergency that does not mean the fight is over. The motion will still get heard later on a non-emergency basis.
“If it is determined that the matter presented is not a valid emergency, the movant will be directed to place the matter on the Court’s regular motion call and to notify all parties that the motion will not be heard as an emergency.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)(c)
How To Respond To The Substance Of An Emergency Motion
While you are pointing out to the judge why your opponent’s motion is not an emergency…you can also argue as to the substance of the emergency motion.
Almost all emergency motions are essentially one party requesting that the other party stop doing something or to affirmatively do something. Emergency motions are motions for an injunction.
An injunction is “a court order commanding or preventing an action.” Black’s Law Dictionary (11th ed. 2019)
Injunctive relief is hard to get! “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
This emergency motion, emergency or not, is going to be held to a very high and specific standard in regards to the substance of the motion.
“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).”
What is the right that needs protection? (This one is probably easy to establish)
What is the irreparable injury? The injury is not something that is over. The injury must be ongoing.
“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).
Where is the absence of a legal remedy? If you can figure out the monetary cost of the injury, there is a legal remedy: just award the other party that cost. If you cannot figure out the cost now or in the future, an injunction is appropriate.
“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).
All injunctions stemming from an emergency motion will be temporary in nature. Therefore, success on the final merits is not necessary. Only that the emergency motion raises “a fair question.”
“The party seeking a preliminary injunction or temporary restraining order is not required to make out a case which would entitle him to relief on the merits; rather, he need only show that he raises 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.” Buzz Barton & Associates, Inc. v. Giannone, 483 NE 2d 1271 – Ill: Supreme Court 1985
Finally, injunctive relief cannot be granted without considering the burdens on both respective parties. You cannot force one party to move a mountain in order to preserve the other party’s molehill.
“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
Denying An Emergency Motion In An Illinois Divorce
Parties to an Illinois divorce who file emergency motions hope the court will determine if the motion is an emergency using the approach, “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184 (1964)
That is NOT how emergency motions get decided. Make your opponent and the judge walk through the proper procedural steps before granting an emergency motion. If defended properly, the emergency motion that emergency motion is going to denied…and once denied the defender may be entitled to attorney’s fees.
“The Emergency Motion procedure set forth in this Administrative Order shall not be used as a vehicle to circumvent the non-emergency motion procedures. If the Court determines that the matter presented is not a valid emergency, the Court may issue sanctions against the movant. A party and/or their counsel who appeared for or responded to a Motion submitted as, but found not to be, an emergency may be entitled to reimbursement by the movant of actual expenses, fees and costs incurred, under the discretion of the Court.” Cook County Domestic Relations Administrative Order 2021 AO 3(5)
If you are facing an emergency motion…I’m probably too busy to address it by 9 AM tomorrow. But I could still take a short call to help you strategize. Contact my Chicago, Illinois family law firm to learn more about how to respond to an emergency motion in an Illinois divorce.
source https://rdklegal.com/how-to-respond-to-an-emergency-motion-in-an-illinois-divorce/
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