C. Temporary Orders
(i) Temporary Restraining Orders are designed to prevent irreparable injury to the status quo. Simply put, marital assets in danger of dissipation, concealment or conveyance to third parties are "frozen" until the Respondent appears for a court hearing on why the court should not extend the protections throughout the duration of the divorce. Commonly, after the entry of an initial temporary restraining order, attorneys for the parties may agree that assets continue to be frozen, under a preliminary injunction, however allowances are made for either party to continue to deposit or withdraw monies for "the ordinary course of business" and/or "necessities of life" until the assets are fully accounted for and subject to a final division and distribution pursuant to the terms of a Judgement for Dissolution of Marriage.
(ii) Orders of Protection are court orders prohibiting the abuser (Respondent) from continuing abuse against the person bringing the action (Petitioner) or against any minor children in the household. The Order forbids the Respondent from both physically harming and causing a fear of harm. The order is enforceable throughout the state of Illinois.
Orders of protection can be obtained at the courthouse for the county where the victim lives. To protect the victim and substantiate their claim against an abuser, it is urged that an application is made as soon as possible after the abuse occurs. The petition for an order of protection is usually made by the victim, however, someone else may file the petition on the victim's behalf if the victim is unable to file because of age, disability or health.
For a court order to be granted, the petition must be supported with evidence of the abuse; typically the Petitioner must execute an affidavit describing the events or incidents of the alleged abuse, the effects of the abuse and the on-going need for protection.
When an order of protection is sought without prior notice of the proceeding to the Respondent, a temporary or ex parte order, they are generally valid for up to 21 days; however a Respondent may, upon two days notice to the petitioner, appear and petition the court for a rehearing of the original ex parte order. The hearing is held so that the abused person and the person accused of abuse can tell the judge about the events surrounding the alleged abuse. A hearing will then determine whether the ex parte order previously issued will be dismissed - if the judge does not believe that the request for protection is supported by the evidence - or extended into a plenary order, that is good for up to two years - if the judge believes the Petitioner needs the order of protection for his, her or the minor child(ren)'s safety.
Usually an order of protection prohibits the Respondent from contact with the Petitioner and/or the party's minor children, including visits to the Petitioner's workplace or to the children's school and may additionally grant the Petitioner exclusive occupancy of the party's home; exclusive use and possession of the party's personal property, including automobiles; temporary child custody; visitation agreements; child support or spousal maintenance arrangements; making the abuser pay restitution for property damage or attorneys fees incurred; or to receive counseling.
When an order of protection has been granted and the Respondent attempts to violate the order, the police should be contacted through their emergency '911' system and notified of the order. Once an order of protection is enforced by the police (usually by removing the offender from the premises), a complete police report should be filed documenting the incident.
Violating an order of protection is a criminal offense. Police officers may arrest the abuser and, even if the police do not make an arrest, they still must inform the victim of their right to request criminal proceedings, seek medical help, take photographs to document the abuse and keep evidence, such as damaged property. Police officers must also file reports of every incident and investigate any believable allegation of abuse.
It should be noted that courts scrupulously maintain these orders as extraordinary remedies. Practically speaking, they are not freely given nor should they be carelessly employed; and sanctions may result from their frivolous use.
Suggestion is made that a skilled attorney is in the best position to assess your specific needs and determine if a request for the relief(s) discussed hereabove are applicable to your situation and will strengthen or weaken your case.
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