Use of Temporary Restraining Orders - Law Firm Law Offices of Michael A. Meschino Attorneys Palatine, Illinois

In Domestic Relations the use of Temporary Restraining Orders and Preliminary Injunctions are governed by Section 501 of the Illinois Marriage and Dissolution of Marriage Act. Section 501(a)(2) provides in relative part the following:

"In all proceedings under this Act, temporary relief shall be as follows:

(a) Either party may move for...

(2) a temporary restraining order or preliminary injunction accompanied by affidavit showing a factual basis for any of the following relief:

(i) restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued;

(ii) enjoining a party from removing a child from the jurisdiction of the court;

(iii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child; or

(iv) providing other injunctive relief proper in the circumstances,"

The requirements for an Injunction under Domestic Relations Law is the same as the requirements under the Code of Civil Procedure. In Re the Marriage of Elliott, 265 Ill. App. 3d 912, 638 N.E.2d 1172 (2^nd Dist. 1994); In Re the Marriage of Schmidt, 118 Ill. App. 3d 467, 455 N.E.2d 123 (1^st Dist. 1983). Those requirements for an injunction are as follows:

1. That the party moving for the injunction possesses a clearly ascertainable right which needs protection;

2. That the moving party will suffer irreparable harm without the injunction;

3. That there is no adequate remedy at law for the injury; and

4. That the moving party is likely to be successful on the merits of this action.

In addition the moving party must establish that the need for temporary relief outweighs any possible injury that the party to be enjoined might suffer by its issuance. Carrillo v. Jam Productions Limited, 108 Ill.App.3d 126, 438 N.E.2d 1197 (1982).

In the case of In Re the Marriage of Schmidt, supra, the Appellate Court was reviewing the denial of the husband's Motion to Dissolve a Preliminary Injunction and a Temporary Restraining Order which prohibited him from disposing of his real and personal property and any assets in which he held any interest whatsoever. The ex-wife had brought a Petition for Rule to Show Cause and a Petition for a Temporary Restraining Order and Preliminary Injunction based upon the failure of the husband to make a mortgage payment as required under the Judgment for Dissolution of Marriage. In her Petition for a Temporary Restraining Order the wife stated as follows:

"4. Based upon Respondent's contemptuous, deceitful behavior over the past two years, the Petitioner believes that he would "hide", transfer, dissipate his assets and interest if given notice of these proceedings before entry of a restraining order."

That the petition went on to request that the court prohibit the ex-husband from disposing of any real and personal property and any assets in which he held any interest whatsoever.

The court found, in an ex parte hearing, that irreparable harm could result to the ex-wife if the ex-husband was given notice of the proceeding and granted the Temporary Restraining Order requested by the ex-wife. Three weeks later the trial court entered an order which elevated the Temporary Restraining Order to a Preliminary Injunction. Attorneys for both parties were before the court but no pleadings had been filed by the Respondent. The ex-husband then filed a Motion to Dissolve the Temporary Restraining Order and Preliminary Injunction which the trial court heard and after a hearing, denied the same. An appeal was then taken to the 1^st District Appellate Court.

The Appellate Court dissolved the Preliminary Injunction due to the fact that the Petitioner, the ex-wife, had not alleged specific facts which showed that her remedy at law was inadequate or that she would suffer irreparable harm without injunctive relief. Additionally, the court commented that Section 501 of the Illinois Marriage and Dissolution of Marriage Act requires that the movant show a factual basis for the relief sought by the use of an affidavit.

The court further went on to state that Section 11-101 of the Code of Civil Procedure provides that "no temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.

The Appellate Court also stated that the allegations made by the ex-wife in her petition, made upon information and belief are not sufficient to support a preliminary injunction. The court also noted that they did not believe that an allegation that the ex-husband had willfully and contumaciously failed to make a payment, by itself, would warrant the issuance of a Temporary Restraining Order or a Preliminary Injunction. More to the point, the court did not believe that such an allegation establishes that there is no adequate remedy at law for the failure to make such a payment.

As we are all aware, first and foremost, Domestic Relations courts are courts of equitable jurisdiction. The trial court judge in a domestic relations case has the jurisdiction to hear all issues which are justiciable in nature. In Re the Marriage of Peshek, 89 Ill.App.3d 959, 412 N.E.2d 898 (1^st Dist. 1980). That Domestic Relations courts retain their traditional equitable power despite Legislative encroachment. In Re the Marriage of Pahlke, 120 Ill.App.3d, 1009, 458 N.E.2d 1141 (1^st Dist. 1983)

The use of injunctions in domestic relations cases is a powerful tool in protecting the client's rights in marital property and preserving the status quo. However, there are requirements for the issuance of injunctive relief and a careful practitioner needs to make the determination that they have sufficient facts to substantiate that irreparable harm will be suffered by the moving party without an injunction and that the moving party is without an adequate remedy at law. Further, Section 501 of the Illinois Marriage and Dissolution of Marriage Act requires that a party moving for this type of relief attach an affidavit showing a factual basis for such relief.

In a case where someone removes a child from the jurisdiction or threatens to remove a child from the jurisdiction, the requisite factual allegations need to be set forth not only in the body of the motion but also in an affidavit.

It is when there is a financial question that the court will require additional factual allegations, stated affirmatively and not on information and belief to issue injunctive relief.