The Illinois divorce court system seems very intimidating. You have to put on paper the most fundamental and intimate details of your life: you and your spouse’s break up, your kids, all of your finances. Then those papers get stamped, become part of the public record and are then picked apart by your ex’s attorney. For these reasons, it’s easy to be afraid of making a mistake on your divorce paperwork.
Thankfully, the Illinois court system is very forgiving and lets you make appropriate amendments…so long as you follow the rules.
But first, why would you even need to amend a pleading?
Dismissing a Pleading In An Illinois Divorce Case
A pleading is “a formal document in which a party to a legal proceeding (esp. a civil law suit) sets forth or responds to allegations, claims, denials and defenses” Black’s Law Dictionary (8th ed. 2004)
An Illinois divorce requires a pleading that must meet certain requirements as outlined by the statute.
“The complaint or petition for dissolution of marriage or legal separation shall be verified and shall minimally set forth:
(1) the age, occupation and residence of each party and his length of residence in this State;
(2) the date of the marriage and the place at which it was registered;
(2.5) whether a petition for dissolution of marriage is pending in any other county or state;
(3) that the jurisdictional requirements of subsection (a) of Section 401 have been met and that irreconcilable differences have caused the irretrievable breakdown of the marriage;
(4) the names, ages and addresses of all living children of the marriage and whether a spouse is pregnant;
(5) any arrangements as to support, allocation of parental responsibility of the children and
maintenance of a spouse; and
(6) the relief sought.” 750 ILCS 5/403(a)
If the requirements for a particular pleading are not met, the other party can raise objections and/or motion to strike and/or dismiss.
“All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.” 735 ILCS 5/2-615(a)
An objection is essentially an invitation to amend the pleading.
The objector can go one step further and insist on an involuntary dismissal due to the pleadings defects. “Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief” 735 ILCS 5/619(a)
The easiest way to defend against a motion to strike and/or dismiss is to simply request leave to amend the pleading so that the pleading complies with the law’s requirements.
Requesting Leave To Amend A Pleading In An Illinois Divorce
“At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended” 735 ILCS 5/616(a)
You have to ask the court for permission to amend your pleading in advance of filing said amended pleading.
While “the circuit court may grant plaintiff leave to amend its complaint on just and reasonable terms at any time prior to final judgment. This right to amend, however, is neither absolute nor unlimited. ” I.C.S. Illinois v. Waste Management, 403 Ill. App. 3d 211, 219 (Ill. App. Ct. 2010)
“A party does not have the absolute right to amend pleadings. Since there is no absolute right to amend, a party first must seek and obtain from the court permission to file a proposed amendment.” FIRST ROBINSON S. & L. v. LEDO CONST. CO., 569 NE 2d 304 – Ill: Appellate Court, 5th Dist. 1991 (citations omitted)
The request to amend the pleading must be in writing and the other party must be given proper notice.
“[A]pplication for leave to amend cannot be made ex parte. Instead, a motion for leave to amend a pleading must be in writing, state the reason for the amendment, set forth the amendment that is being proposed, show the materiality and propriety of the proposed amendment, explain why the proposed additional matter was omitted from earlier pleadings, and be supported by an affidavit. Furthermore, the opponent must be given notice and an opportunity to present any objections to the application. This requirement of notice extends to all amendments, even those that seek simply to add to or otherwise increase the demands contained in the original complaint.” FIRST ROBINSON S. & L. v. LEDO CONST. CO., 569 NE 2d 304 – Ill: Appellate Court, 5th Dist. 1991 (citations omitted)
When deciding whether leave to amend should be granted, four factors are to be considered by the court: “(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified.” Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992)
“The [proposed amender] must meet all four factors” I.C.S. Illinois v. Waste Management, 403 Ill. App. 3d 211, 220 (Ill. App. Ct. 2010)
Outside of this requirement “[a] trial court has broad discretion in motions to amend pleadings” In re Estate of Nicholson, 268 Ill. App. 3d 689, 695 (Ill. App. Ct. 1994)
Just because your amendment is trying to fix something, doesn’t mean it will be automatically granted. Amendments will be examined by the court with scrutiny. After all, if there was a problem once, isn’t it likely there’ll be a problem the second time?
“There is no presumption that a proposed amendment will be a proper one and it is not error to refuse to allow an amendment that has not been presented when there are no means of determining whether or not it will be proper and sufficient.” Intini v. Schwartz, 78 Ill. App. 3d 575, 579 (1979)
How does the court know if your proposed amendment is good? Attach the proposed amended pleading as an exhibit to your motion for leave to amend.
Without a proposed amended pleading “[i]t is not error to refuse to allow an amendment when there are no means of determining whether or not it will be proper and sufficient. ” In re Estate of Nicholson, 268 Ill. App. 3d 689, 695 (Ill. App. Ct. 1994)
If you do not include your proposed amended pleading you cannot even appeal the court’s decision afterwards.
“[A] party desiring to file an amended pleading should make it part of the record on appeal. If this is not done, a court of review is not in a position to say that justice would be served by granting leave to amend. In such instances it can be presumed that a plaintiff’s second attempt to state a cause of action would be no more successful than his first.” Hassiepen v. Marcin, 22 Ill. App. 3d 433, 436 (1974)
An amended pleading must include or refer to all the things your prior pleadings discussed. Otherwise, the missing counts in your amended pleading will be deemed extinguished.
“Allegations in a former complaint not incorporated in the final amended complaint are deemed waived.” Barnett v. Zion Park District, 171 Ill. 2d 378, 383 (1996)
Amending Motions In An Illinois Divorce
A motion is not a pleading. A pleading starts a case (for the most part). A motion resolves issues as the case is ongoing.
“A motion is an application to the court for a ruling or an order in a pending case.A pleading, in contrast, consists of a party’s formal allegations of his claims or defenses.” In re Marriage of Wolff, 355 Ill. App. 3d 403, 407 (Ill. App. Ct. 2005)(citations omitted)
Motions cannot be stricken or dismissed without being heard in an Illinois divorce court. The Illinois law for motions to dismiss “applies only to the dismissal of pleadings…. [Illinois law] defines a pleading as a cause of action, counterclaim, defense, or reply. A motion…is none of these.” In re Marriage of Wolff, 355 Ill. App. 3d 403, 407 (Ill. App. Ct. 2005)
Nothing is perfect, not even amendments. Don’t worry about amending your pleading to address every single objection. You are allowed to ask the judge in advance what their inclination is as to your current pleading and the outstanding objections in a pretrial. The judge’s response will tell you if an amendment is necessary.
If you’re worried about amending a pleading in an Illinois divorce case then you have a lot of procedural issues in your case. Contact our Chicago, Illinois family law firm to learn more about when and how you need to amend pleadings.