Why Do I have to Pay his or her divorce lawyer's fees...?! And other questions about temporary relief orders in Illinois divorce cases

What exactly is “temporary relief” in divorce and what could it mean for your divorce in Illinois?   This article touches on one of the uglier side of divorce where emotions are raw and people get angry because they were just hit with a temporary court ruling that feels really, really unfair.  Lets first look at what is meant by a temporary order, sometimes called “temporary relief” or “interim orders” in Illinois. 

Looking at the timeline of divorce, there is the period leading up to a divorce before any documents are filed.  The parties are usually already living apart and leading separate lives (though this is not always the case).  Sometimes the bank accounts have been separated and except for the fact that they are still married and maybe have children together, there isn’t anything left together.

 Then someone decides that its time to do the inevitable and file for divorce. This is the second time frame which starts as soon as a divorce is filed. During this time, each side will typically hire a lawyer to protect his or her rights and the process begins.  Discovery documents are exchanged to give everyone a good idea as to what is what in terms of income, money, debt, expenditures, values, assets, liabilities, and so forth.  The terms of the divorce are negotiated or if negotiation becomes very difficult, different strategies can be employed such as mediation, conferences with the judge, and “4 way” meetings where the parties and their lawyers meet together to try and get the issues hammered out once and for all. If still not successful, a trial may be set and the judge will decide the terms of the case. If minor children are involved, then custody, child support and parenting time also needs to be worked out.  Eventually, and hopefully sooner rather than later, the parties have the divorce finalized and they move on to the third stage of being legally divorced.

This article deals with the second phase, once a divorce is filed with the court but before it is finalized, and the temporary orders that a court may enter. This period typically will last anywhere between a number of months to two years (and sometimes longer, but that is very rare).  Legally, either party can ask the judge for what is called “temporary relief” which is just what it sounds like. It asks the court to enter an order that is in effect during the duration of the divorce only. Sometimes the same terms will be included into the final divorce decree, but they don’t have to be.  These orders usually have to do with either children or money.

In the case of children, the orders usually set up some kind of an established parenting schedule if the parties aren’t able to readily agree upon a schedule for the children.  If one person has only just moved out, a temporary order may be necessary to establish who the kids are going to live with or where they will be going to school.

In the case of money, temporary relief is a request to the court asking for a court order giving him or her access to the money in the other person’s bank account. This is usually for help paying legal fees or the request can also come in the form of temporary maintenance (which used to be called alimony and is sometimes called spousal support).  Requests for temporary financial relief are more commonly seen when the spouses have separate bank accounts because if they are still sharing a joint account, either party can continue to write checks or otherwise access money just as they always have.

The most common type of temporary orders entered are orders for child support.  Child support becomes payable once the couple have physically separated and the child (or children) is living with one parent and not the other. The parent who does not live with the minor children is required by law to provide financial support to the other parent, for the benefit of the children. In addition, the court will also order that the parent who carries the health insurance for the child continue to keep the child covered. This is addressed under what is called a “Uniform Order of Support” which is entered by the Court and sets the stage for a “withholding order” which requires employers to withhold child support from the payor’s paycheck, just like they withhold taxes. The child support is then sent to the State of Illinois and the state sends it to the parent who the kids live with.  The State will also track it for the parties, preventing “he said-she said” disputes about whether or not support was actually paid and when.  Often, child support was already getting paid before the divorce was filed but usually it was done without anyone having ever been told by a lawyer, what amount of child support the law requires.  Child support must be paid according to a percentage of all income of the person who pays it. If not enough support was being paid before the divorce was filed, it is usually straightened out pretty quickly after the divorce process begins. The obligation to support the children, and in some cases a spouse, does not begin once the divorce is made final but can and often does start while the divorce is going on.

People sometimes get mad, and understandably so, when they have an Order for Temporary Relief entered against them separate and apart from child support, especially if they have been living separately from their husband or wife for a while and then all of a sudden, a judge tells them that they have to start writing checks to the other person or worse, to the other person’s lawyer.  What needs to be understood is that during this phase, you are still married even though you may have been living separately for a while and leading separate financial lives. The law imposes a duty of support on each other and views marriage not only as a personal relationship but as a financial partnership as well.  If you make more than your spouse, you may very well need to help support your spouse, especially if you make a much higher income. When it comes to legal fees, there is something under Illinois law called “leveling the playing field” which means that legal fees need to be paid for “by the marriage”, regardless of who earns the bulk of the money or manages the finances.  This concept of “leveling the playing field” aims to put both spouses on equal footing when it comes to being able to have an attorney. If you were ordered to pay fees to your spouse’s lawyer at the outset of the case, you may be able to “make up” for it at the end of the case, depending on the overall circumstances. No one likes having to pay the other guys’ lawyer but if your spouse earns an income that does not allow for the high cost of a divorce,  and if you make significantly more money than your spouse then there is a good chance that you are going to be ordered to do it, and sooner rather than later as the courts take the position that family law attorneys should not have to wait until a case is over to get paid.

Temporary maintenance, or spousal support is another form of temporary relief that may be ordered and typically turns into permanent support. New guidelines for 2015 are going into place and are not addressed in this article, but be aware that maintenance may also be ordered while the divorce is going on, especially if one spouse far out-earns the other & the marriage was not a short one. 

Carol O'Connor Cadiz
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Attorney & Owner at O'Connor Cadiz Law: Bankruptcy, Injury, Real Estate & Mediation