In this article, we discuss appealing a temporary order handed down during an Illinois divorce case and answer the following questions:
- What is a temporary order?
- Can temporary orders be appealed before the final judgment?
- What type of temporary orders are appealable in divorce cases?
- What is the process of appealing a temporary order?
What is a Temporary Order?
Simply put, a temporary order is a decision from the judge regarding a specific conflict or discrepancy that arises at any point during the divorce case. Temporary orders—referred to as interlocutory or interim orders depending on the situation—are quite common in divorce cases. Divorce cases can take months to resolve and in the meantime issues such as child support, child custody, temporary attorney fees, living situation, etc can weigh heavily on one or both parties. Interlocutory orders are not final and it’s possible that an interlocutory order granted during discovery or early in the trial process is effectively reversed with the final judgment.
But what if one party disagrees with one or more interlocutory orders issued by the judge? For example, Karen and Chad are getting divorced and during the proceedings, the judge issued two temporary orders that Chad disagreed with. One is a temporary abuse prevention order and the other being a motion from Karen’s party requiring him to vacate their home during the divorce proceedings. Not only does Chad disagree with the orders, but his party feels that by not at least challenging the abuse order they are setting a certain precedent.
Can Temporary Orders Be Appealed Before the Final Judgment?
The general notion that appeals can only be filed after the final judgment is handed down is false. There are a handful of exceptions that allow for the appeal of a temporary order in Illinois. Furthermore, based on rulings from the Illinois Supreme court certain temporary orders are not appealable purely based on the fact they are not final. If that sounds confusing it’s because it is. Because interlocutory orders are subject to modification during divorce proceedings, and because appealing temporary orders can break up the original case proceedings; making for a disjointed, inefficient process, appellate courts are hesitant to hear appeals of such orders. Also, the appeals process can be complex and time-consuming, and simply asking the judge to reconsider his or her temporary order or petitioning for a modification of the order should be considered first.
What Type of Temporary Orders are Appealable in Illinois Divorce Cases?
If asking the judge to reconsider a temporary order or modification of a temporary order fails then the party has no alternative but to let the order stand or to attempt to appeal. So, what makes a temporary order appealable in an Illinois divorce case? Below is a shortlist of scenarios that may allow a temporary order to be appealed.
- Interlocutory orders that result in any action taken. For example, a temporary order regarding child custody resulting in the child living with one parent full time and limited visitation for the other parent.
- A temporary order entered by the court with the finding that “there is no just reason delaying enforcement or appeal or both.” This phrase, or something akin to it, is considered the “magic words” by attorneys signaling that the temporary order can be appealed.
- When a client is found “in contempt” of an order and a resulting sentence is imposed. This is a strategy that comes with great risk and is generally not suggested. What it means is that the client disobeys a temporary order, finding himself or herself in contempt with a sanction issued then the appeal would be against the contempt finding and also would challenge the temporary order that the contempt finding was based on. However, even if one party is found to be in contempt of a temporary order if the finding of contempt handed down by the judge does not impose any form of punishment then it may not be appealable.
- Interlocutory appeals by permission. This category includes appeals against a grant of order for a new trial, jurisdiction and venue, collateral orders, and focused matters.
- Interlocutory appeals by right. This category allows for an immediate appeal by right and includes appeals against the order of injunctive nature, control of assets and focused matters
This list is not exhaustive of all scenarios and situations when a temporary order would be appealable and there are further subcategories within the larger categories. The point is that every divorce case, and each civil case in general, is fluid and an appeal granted for a temporary order in one case, may not be granted for another. This is why it is very important to have a competent family law or probate attorney in a divorce case.
What is the Process For Appealing an Interlocutory Order in Illinois?
The notice of interlocutory appeal must be filed within 30 days of the interlocutory order being attacked. Generally, three questions must be considered when determining the validity of an appeal:
- Does the order being appealed involve a “question of law?”
- Is the question of law one “in which there exists a substantial difference of opinion?;” and
- Would an appeal substantially advance the conclusion of the case?
Furthermore, the following information should be included with the appeal:
- An official request for review listing the nature of the order and the date;
- A statement of the issues at hand;
- A state of the relief requested by the appeal (usually, at the very least it is to overturn the order); and
- A copy of the order being appealed
Since the appellate justice reviewing the case will not have the entire case to review like he or she normally would with a final judgment appeal, a document with portions of the case records that apply to the appeal must be included.
Just as there is no guarantee that an appeal against a final judgment order will be granted, an appeal against an interlocutory order is not guaranteed to be granted even if it has been in past cases. However, having a good probate or family law attorney on your divorce case can greatly increase the success of identifying when such an appeal is appropriate, and getting the appeal granted. If you have any questions about temporary order appeals don’t hesitate to give our office a call at 630-324-6666.
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