Imagine your ex waits years before asking the court to enforce a provision in your divorce judgment. Can they still get relief? Two defenses often stop these late requests: waiver and laches.
When someone doesn’t do something in an Illinois divorce matter, the other party can say “Sorry. You snooze, you lose. You should have asked for that months/years ago. We’re not dealing with it now.”
There are two legal bases for denying some kind of relief that the other party has brought up at the proverbial last minute: Waiver and Laches.
Waiver In An Illinois Divorce Case
Waiver is a defense to a request for relief that explains to the court “this issue was waived previously by the words, actions or inactions of the person requesting relief.”
“Waiver is an equitable principle invoked to further the interests of justice whenever a party initially relinquishes a known right or acts in such manner as to warrant an inference of such relinquishment.” Mollihan v. Stephany, 368 NE 2d 465 – Ill: Appellate Court, 1st Dist. 1977
“A waiver may be either expressed or implied, arising from acts, words, conduct, or knowledge of the insurer. An implied waiver arises when conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive it.” Home Ins. Co. v. Cincinnati Ins. Co., 821 NE 2d 269 – Ill: Supreme Court 2004
“Generally, to make out a case of implied waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose.” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted)
“The burden of proof is upon the party claiming a waiver to prove the facts upon which he relies for such waiver.” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted)
“Proof of a voluntary and knowing waiver of a contract provision should not be assumed from mere inaction” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted)
An example of waiver would be a spouse failing to object for months when support was paid late. Making an issue of late support months later could be barred if a court determines they waived strict enforcement.
Laches In An Illinois Divorce Case
Laches looks like waiver but Laches is a completely separate defense. The laches defense explains to the court that the party requesting relief waited so long that the delay has now materially affected the other party.
“Laches is an equitable doctrine which precludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party.” Tully v. State, 574 NE 2d 659 – Ill: Supreme Court 1991
“Laches is an equitable defense asserted against a party who has knowingly slept upon his rights and acquiesced for a great length of time and its existence depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did.” Tillman v. Pritzker, 183 NE 3d 94 – Ill: Supreme Court 2021 (Citations Omitted)
An example of laches is if a spouse waited 10 years to demand division of a retirement account, but by then, the other spouse had retired and spent the funds on legitimate living expenses.
How To Use Waiver And Laches Together In An Illinois Divorce Case
If your opposing party is bringing up issues they should have brought up a long time ago, you can ask that their motion or pleading be denied based on Waiver AND Laches.
Explain that they clearly relinquished their own right to pursue this relief a long time ago (that’s waiver) AND that such failure to exercise their right timely has caused you prejudice (that’s laches).
If the relief the opposing party is requesting is a motion, simply point out in your response how waiver AND laches bars their relief (just quote the case law above).
If the relief the opposing is requesting is a petition. File a motion to strike and dismiss and explain how waiver AND laches are your affirmative defense.
“Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
…
That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)
Take careful notice that the defenses of waiver and laches are not in any statute or rule. They defenses based in case law. If you don’t know your case law…what else defenses (and attacks) are you missing out on?
To learn more about legal strategy via case law, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
