Generally, a party to a lawsuit is entitled to due process. Due process is fairness in a judicial proceeding. This usually occurs through appropriate notice to the party subject to the judicial proceeding as well giving that party an opportunity to prepare for and participate in the proceeding.
In divorce cases, under appropriate circumstances, a party can file an “emergency petition” in which the other party would not be given notice and/or an opportunity to prepare and participate in the proceeding, thus bypassing one’s due process rights. A hearing on an emergency petition is considered an extraordinary measure. In order for a judge to consider an emergency petition, one will usually have to allege that an immediate and irreparable injury or loss will result if the relief is not granted.
In divorce cases emergency matters usually arise when either minor children or marital assets are in danger. For example, if a spouse is going to transfer marital funds out of the marital estate, then a judge may step in on an emergency basis to protect the marital estate. For an example involving minor children, a judge could order one parent to have supervised parenting time if he/she has a substance abuse problem that endangers a child.
Divorce cases involve the breakdown of a marriage. With that comes the potential for emergency situations. Illinois law permits a judge to bypass due process rights in order to prevent irreparable injury. The Botti Law Firm, P.C. has been practicing family law for nearly 50 years in DuPage and Cook County. Please contact one of our attorneys at (630)573-8585 if you have any questions or would like to schedule a free consultation.
