Divorce and Family Law
Temporary Orders in a Divorce Case
Over the past twenty-seven years of my family law practice, one of the most common questions from clients has been “Why is this taking so long?” The second most commonly asked question has been, “Why is this costing so much money?” I hope that this section will help to explain and answer these questions.
Often, prior to or shortly after the filing of a Petition for Dissolution of Marriage, one spouse or the other is left in a situation of distress. That distress may include lack of financial resources, lack of access to your home or records, or as is too often the case, lack of access to your children. In an effort to resolve those issues, the court has established rules, procedures, and practices designed to relieve divorce litigants temporary needs. For example, let’s presume that John Doe has been removed from his residence and his estranged spouse, Jane Doe has denied him access to the parties’ two minor children. Let us further presume that John Doe is the sole income producer for the household. Because it took two weeks to serve Jane Doe with John Doe’s Petition for Dissolution of Marriage, and because Jane Doe had thirty days to file an Appearance and Answer, John Doe has been denied access to his children for six weeks. In response to that unfortunate situation, John Doe’s attorney filed a Petition for Temporary and Permanent Child Custody, and Visitation. Because of the court’s schedule, an initial hearing date for that petition was set fourteen days later.
The Illinois Rules of Court do not provide for automatic responsive pleadings; therefore, the first court date, which the attorney’s must appear, most likely will not produce any situation relieving result. Rather, the court will set a briefing schedule granting the other party time to file a responsive pleading to John Doe’s temporary petition, and the court may then set a hearing or status date for the next court appearance. Obviously, it is John Doe’s desire to go to court as soon as possible so that he can see his children; however, the ultimate decision lies with the judge. Typically then, if the court sets a hearing date that proceeding will probably be scheduled at least thirty to sixty days later.
In response, Jane Doe’s attorney realized that John Doe’s temporary petition does not provide for the support of the family. Jane Doe’s attorney then files a petition seeking temporary child support and spousal maintenance. That petition may also request additional contributions towards extra educational expenses, and contributions towards the family obligations such as mortgage, utilities, etc. That petition will then be noticed for an initial hearing and as with John Doe’s petition, the initial hearing will probably result in an order establishing a briefing schedule and then setting the petition for Evidentiary hearing.
To further complicate the situation, the court, on its own motion or upon request from either party may order the litigants to participate in mediation. If the parties are ordered to mediation, that process most likely will take three to four months. (Mediation is a process whereby a third party, most often Court appointed, brings the divorcing litigants together with the hope and effort to reach agreements.) In the meantime, pending mediation results, the court may delay a hearing on any temporary petition for custody and visitation. If the litigants have skilled counsel, though, the court will be prompted to enter an interim visitation and child support order.
In answer to the first question set forth in the beginning of this section, the process takes a long period of time because of the volume of litigants passing through the judicial system and because of the availability of the court. Additionally, the process moves slowly because the Illinois Rules of Court fail to provide specific pleading time parameters that would speed up the process. In answer to second question, the process is expensive because John Doe and Jane Doe along with their attorneys will probably appear in court four to six times before their petitions for temporary orders are ever considered by the Court. However, there are strategic methods that when utilized by knowledgeable and skilled attorney will speed up the process and eliminate a lot of stress.