A Simple Guide for Filing a Divorce Case in Illinois
By Corri Fetman | February 12, 2024
Filing for divorce can be a complex and emotionally challenging process, and understanding the specific requirements for filing in Illinois is an important part of the process. In Illinois, the dissolution of marriage follows a specific set of guidelines and prerequisites to ensure a fair and orderly legal procedure for subject matter jurisdiction and personal jurisdiction. This article aims to provide a simple but complete guide to the requirements for filing a divorce action in the State of Illinois.
Illinois Divorce Jurisdiction Requirements
Subject Matter Jurisdiction
First and foremost, a court must have subject matter jurisdiction and personal jurisdiction over the parties to adjudicate the dispute. Subject matter jurisdiction refers to a court’s authority to hear cases of a particular type or category. It is one of the foundational elements that determine whether a court has the power to adjudicate a specific legal dispute. Quite simply stated, subject matter jurisdiction specifically relates to the nature of the case or the subject matter involved. Courts are generally limited by their governing statutes or constitutional provisions to hear certain types of cases. For example, a family court may have subject matter jurisdiction over divorce and child custody cases, while a criminal court has jurisdiction over criminal matters. Therefore, simply stated, the divorce case must be initiated in an Illinois family law court.
Personal Jurisdiction Over the Parties to the Case
Service of Process:
Second, the court should have personal jurisdiction over the opposing party or respondent if you want the court to be able to adjudicate property, maintenance, support and other important rights. To initiate a divorce case, proper service of process is crucial. This typically involves the Sheriff or a private process server delivering legal documents, such as the divorce petition, summons, and other relevant filings, to the respondent in a manner that meets the service requirements in the State of Illinois. In Illinois, personal jurisdiction is typically established through service of process. This means that the divorce papers are personally served to the respondent.
In some cases, personal jurisdiction may also be established through the parties’ consent or the consent of opposing counsel (respondent’s counsel).
Long Arm Jurisdiction:
Personal jurisdiction can also be procured through long arm jurisdiction in the State of Illinois. Illinois recognizes the concept of long-arm jurisdiction, allowing the court to assert authority over non-residents in certain situations. There are specific circumstances under which a court may exercise long-arm jurisdiction. These include situations where the non-resident has what is known as minimum contacts with Illinois, such as owning property in the state, visiting the State of Illinois or committing acts that directly affect the divorce issues being litigated.
Due Process Considerations:
All in all, establishing personal jurisdiction must comply with constitutional due process requirements. This means that the respondent must have sufficient notice and an opportunity to be heard before the court can make decisions affecting their rights.
Illinois Divorce Petition Filing Requirements
Section 5/401(a) of Illinois Marriage and Dissolution of Marriage Act provides, in relevant part, as follows:
(a) The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding.
Before initiating the divorce process in Illinois, one or both spouses must meet the residency requirements. To this end, at least one party must have been a resident of the state of Illinois for a minimum of 90 days before filing the petition for dissolution of marriage or preceding the making of the finding which generally means the entry of the judgment for dissolution of marriage.
Grounds for Divorce:
Illinois is a no-fault divorce state, which means that neither party is required to prove the other’s fault or wrongdoing to obtain a divorce. However, spouses can cite “irreconcilable differences” as the grounds for divorce, which indicates that the marriage has broken down irretrievably. Alternatively, spouses can opt for a fault-based divorce by citing specific grounds such as adultery, cruelty, abandonment, or substance abuse.
Irreconcilable differences or no fault divorce has become increasingly easier over the years. If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met. Illinois case law has also held that living separate and apart may include living under the same roof but no longer engaging in sexual relations.
County or Venue: In addition to meeting the state of Illinois residency requirements, individuals filing for divorce may file in the county where either the petitioner/plaintiff or the respondent/defendant resides.
To this end, Section 104 of the Illinois Code of Civil Procedure provides, in relevant part, as follows with respect to venue:
Sec. 104. Venue. The proceedings shall be had in the county where the plaintiff or defendant resides, except as otherwise provided herein, but process may be directed to any county in the State. Objection to venue is barred if not made within such time as the defendant’s response is due. In no event shall venue be deemed jurisdictional.
Illinois law states that the divorce case should be filed in the county where one of the spouses currently resides. A venue simply refers to the county court system wherein a divorce case takes place. This county-specific filing ensures that the divorce proceedings take place where one of the parties reside.
However, venue is not jurisdictional and therefore, if one of the parties does not object to venue within the time allowed for filing an appearance and response to the petition for dissolution of marriage (30 days from the date of service of the petition for dissolution of marriage on the respondent), then it is waived by the respondent and the case will proceed in the petitioner’s original choice for the county of filing.
There are times that a respondent spouse may request a change in venue or even contest venue as a strategic move. This dispute usually involves a spouse claiming that the forum (courthouse) is not convenient for the parties and witnesses (called “forum non conveniens”). Since most couples are still living together or living near one another (in a nearby county) when one spouse files for divorce, a change of venue generally proves to be irrelevant. The accessibility of zoom videoconference court proceedings in certain counties, such as Cook County, Kane County and Winnebago County (and zoom depositions), has rendered it even more difficult for a spouse to successfully challenge venue. Since each case has a different and unique set of facts, it is always wise to speak to an experienced family law lawyer before filing.
Cook County also has a selection of suburban District courthouses within its court system (Rolling Meadows, Skokie, Markham, Maywood, Bridgeview, etc.) where a petitioner can file his or her case as well. Of course, there may be notable exceptions such as a petitioner spouse moving from Chicago, Cook County to Champaign-Urbana, Champaign County, Illinois (140 miles away) and filing the divorce action in Champaign County to gain an advantage in a case.
Once you have determine you have met the above requirements, in order to initiate the divorce process, one spouse (the petitioner) may file a Petition for Dissolution of Marriage with the appropriate circuit court in the county where either spouse resides. Along with the petition, the petitioner must submit a Summons, which informs the other spouse (the respondent) of the divorce proceedings and provides them with a timeframe to respond.
Filing for divorce in Illinois involves traversing a series of family law legal requirements and rules and statutory authority, Understanding these requirements is essential to ensure a smooth and legally sound divorce process. While this guide provides an overview, it is advisable to consult with a qualified family law attorney to receive personalized advice based on your unique situation.
Corri Fetman & Associates, Ltd. has extensive experience in the divorce and family law process. To discuss your case, book a consultation by clicking the link below.