Posted on December 2, 2023

Avoiding Service In An Illinois Divorce

The Illinois divorce process does not really start until the other spouse is served. Therefore, some respondents in an Illinois divorce will attempt to evade service in order to avoid the consequences of the pending divorce. Avoiding service is a foolish strategy as service is inevitable in an Illinois divorce.

What Is Service In An Illinois Divorce

“After the filing of the petition [for dissolution of marriage], the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411(b)

It is not just the petition for dissolution which must be served on your spouse. You must also serve a summons.

The summons announces that not only is the divorce proceeding but that they must file an appearance in the case or be defaulted. A Cook County summons reads “YOU ARE SUMMONED and required to file your written appearance and response no later than 30 days not counting service.”

“Serving a copy of a summons and complaint on a party-defendant is an essential part of the litigation process and allows a court to obtain personal jurisdiction over that defendant.” Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773, ¶ 18. “If a party is not properly served with summons, the trial court does not obtain personal jurisdiction over that party.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367 (2001)

Without proper service of the summons and the petition, any order by the court is presumed to be automatically vacatable. “Where the trial court does not have personal jurisdiction over a party, any order against him is void” Department of Healthcare & Family Services ex rel. Hodges v. Delaney. 2021 IL App (1st) 201186

Therefore, it is crucial that service be performed properly in an Illinois divorce.

How Do You Serve A Spouse In An Illinois Divorce?

“Service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode” 735 ILCS 5/2-203(a)

The divorce lawyer or the divorce litigant cannot serve the other spouse, so we have to presume that the sheriff or the process server did it properly based on their affidavit of service.

“The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.” 735 ILCS 5/2-203(a)

“A return of service for personal service is presumed valid. Moreover, an affidavit of service is prima facie evidence that process was properly served. The return of service should not be set aside unless the return has been impeached by clear and satisfactory evidence.”  Statia v. Orlet, No. 5-22-0731, 7 (Ill. App. Ct. 2023)

Impeaching personal service is difficult. The process server will testify that they recognize the respondent and remember serving the respondent. Unless the description of the respondent and the service date on the affidavit of service are clearly in error (wrong race or the respondent was provably out of town) the court is going to affirm the service.

“Leaving a copy at the defendant’s usual place of abode” is also easily provable if the respondent confirms they live at the property and the person who accepted the summons and petition can be identified as a co-resident.

The problem is when a respondent actively avoids service. If the respondent will not stop to acknowledge the process server or open the door for the process server, there is another option: “drop service.”

Drop service is where the process server is literally forced to throw the papers at the respondent as they run away, drop the papers at the respondent’s feet if the respondent will not accept the divorce papers by hand or drop the papers in front of the respondent’s front door.

“[N]o requirement exists that the process server physically place the papers in defendant’s hand.” Freund Equipment, Inc. v. Fox, 301 Ill.App.3d 163, 168 (1998)

“Illinois is a state that accepts the general method’ of placing the papers in the general vicinity of the person to be served and announcing the nature of the papers.” Statia v. Orlet, No. 5-22-0731, 7 (Ill. App. Ct. 2023)

Sliding a copy of a summons and petition under a door has been deemed sufficient personal service. Hatmaker v. Hatmaker, 337 Ill.App. 175, 181-82 (1949)

Service has been deemed sufficient when the process server “placed the documents on respondent’s shoulder. The papers fell to the sidewalk and [the process server] then departed. He stated that he was unsure whether respondent retrieved the documents.” In re Jafree, 93 Ill. 2d 450, 455 (Ill. 1982)

After a process server’s affidavit or testimony describes their attempt to put the summons and petition in the respondent’s “general viscinity,” good luck to the Respondent trying to disprove that event happened.

“A court indulges in every reasonable presumption in favor of the affidavit’s [of service’s] validity, and the uncorroborated account of the party served does not suffice to set aside that evidence.  Rather, to impeach the affidavit of service, the defendant needs affirmative evidence.

Ill. Serv. Fed. Sav. & Loan Ass’n of Chi. v. Barbara Manley, Barbara’s Soul Food Rest. Corp., No. 1-14-3089, 7 (Ill. App. Ct. 2015)

“Courts do not favor those who seek to evade service of summons.” In re Marriage of Schmitt, 747 NE 2d 524 – Ill: Appellate Court, 2nd Dist. 2001

In reality, any dispute about whether a respondent was properly served or not will result in the Petitioner filing a Motion To Serve The Respondent Electronically.

“Upon motion brought pursuant to Section 2-203 .1 of the Illinois Code of Civil Procedure, the court may order service of summons and complaint to be made in a manner consistent with due process and subject to provisions of this paragraph.
(1) If the court is satisfied that the defendant/respondent has access to and the ability to use the necessary technology to receive and read the summons and documents electronically, the following alternative methods of service or combination of methods of service may be ordered by the court when granting a motion brought pursuant to Section 2-203 .1 of the Illinois Code of Civil Procedure (735 ILCS 5/2-203.1).
(A) Service by social media. Service by social media shall be made by (i) sending a direct message to the defendant/respondent on a social media platform on which the defendant/respondent has an active profile; (ii) attaching a copy of the summons, complaint/petition, and any other required documents to the direct message; and (iii) stating in the body of the direct message: “Important information-You have been sued. Read all of the documents attached to this message. To participate in the case, you must follow the instructions listed in the attached summons. If you do not the court may decide the case without hearing from you, and you could lose the case.”
(B) Service by e-mail. Service by e-mail shall be made by (i) sending an e-mail to the defendant/respondent at his or her current e-mail address; (ii) attaching a copy of the summons, complaint/petition, and any other required documents to the e-mail; (iii) stating in the subject line of the e-mail message : “Important information-You are being sued”; and (iv) stating in the body of the e-mail: “You have been sued. Read all of the documents attached to this e-mail. To participate in the case, you must follow the instructions listed in the attached summons. If you do not, the court may decide the case without hearing from you. and you could lose the case.”
(C) Service by Text Message. Service by text message shall be made by (i) sending a text message to the defendant/respondent’s cellular telephone number; (ii) attaching a copy of the summons, complaint/petition, and any other required documents to the text message; and (iii) stating in the body of the text message: “Important information-You have been sued. Read all of the documents attached to this message. To participate in the case, you must follow the instructions listed in the attached summons. If you do not, the court may decide the case without hearing from you, and you could lose the case.” Ill. Sup. Ct. R. 102(f)

If a person cannot be served in person, at their house or in their “general viscinity,” they can definitely be served via email, text or social media.

What Is The Penalty For Evading Service In An Illinois Divorce?

Sooner or later the respondent will be served. Is there a penalty for the time and effort the Petitioner had to expend in order to serve the respondent?

In fact, avoidance of service is a crime in Illinois.

“Whoever knowingly resists or obstructs the authorized service or execution of any civil or criminal process or order of any court commits a Class B misdemeanor.” 720 ILCS 5/31-3

I have never seen this crime prosecuted in 17 years of practice, I have seen attorney’s fees awarded because of one party’s bad behavior.

“Where the court finds there has been lack of good faith by one of the parties which results in excessive litigation, attorney fees to cover the unnecessary litigation may properly be assessed against the overly litigious party.” In re Marriage of Pillot, 495 NE 2d 1247 – Ill: Appellate Court, 1st Dist. 1986

While the service evader was being the opposite of “overly litigious” they were provoking additional litigation and fees and will likely be ordered to pay for those additional fees and costs.

The requirement of service ensures that people are adequately informed of their rights. Avoiding service is an attempt to remain in a veil of ignorance. You are not fooling anyone! Accept service and move on with your life.

If you are trying to avoid service, enjoy living a life on the run with no emails, texts or social media. If you are, however, trying to serve a spouse with divorce papers, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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