A petition for dissolution of marriage requests that a court resolve issues of property division, support and parenting matters. Believe it or not, an Illinois court can resolve one of those issues while leaving a court of another state or country to resolve the rest. Litigating separate parts of a divorce in different jurisdictions happens so rarely and is presumptively illogical that it’s presumed to be impermissible…but it definitely can and does happen.
A Party That Files A Petition For Dissolution Of Marriage First Does Not Automatically Have Exclusive Jurisdiction
It is often thought that the first person to file a Petition for Dissolution of Marriage determines the jurisdiction once and for all. This is the case for competing Petitions For Dissolution between different counties in Illinois.
“The court which first acquires jurisdiction retains its jurisdiction to the exclusion of coordinate courts and courts of other counties must decline jurisdiction of the identical action.” In re Marriage of Alder, 424 NE 2d 763 – Ill: Appellate Court, 1st Dist. 1981 (citations omitted) (emphasis mine)
The “first to file” rule is not controlling when there are competing petitions in different states or countries.
“That one action is filed prior to the other…would not be determinative.” AE Staley Manufacturing Co. v. Swift & Co., 419 NE 2d 23 – Ill: Supreme Court 1980
When There Are Two Competing Petitions For Dissolution Of Marriage In Two Different States Or Countries
It happens every day. One petition for dissolution of marriage is filed in Illinois. Another petition for dissolution of marriage is filed (either before or after the Illinois petition was filed) between the same parties in some other state or country.
The party who filed the petition for dissolution OUTSIDE of Illinois will want to dismiss the Illinois petition for dissolution of marriage so they can proceed with their foreign petition exclusively.
“Defendant may, within the time for pleading, file a motion for dismissal of the action [based on the fact t]hat there is another action pending between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3)
The Illinois case may or may not be dismissed after the Illinois judge performs the following analysis:
“The factors that a court should consider in deciding whether a stay under section 2-619(a)(3) is warranted include: comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum.” Kellerman v. MCI Telecommunications Corp., 493 NE 2d 1045 – Ill: Supreme Court 1986
If the competing divorce is in a foreign country, comity will be of more importance to the court than convenience. An Illinois court will retain jurisdiction if it does not have confidence in the quality of laws and procedure of a foreign jurisdiction. In re Marriage of Murugesh and Kasilingam, 993 NE 2d 1109 – Ill: Appellate Court, 3rd Dist. 2013
If both states or countries can provide adequate relief, the question then becomes what is the more convenient forum?
“[F]orum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice…This doctrine allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)(quotations omitted)
The Illinois court should consider “(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)
Typically, one state or country will eventually concede jurisdiction because it’s absurd to have two separate divorce proceeding simultaneously with the possibility of conflicting rulings.
In An Illinois Divorce With Children, The Financial Aspects Of The Divorce Can Proceed In One State And The Child Custody Aspects Of The Divorce Can Proceed In Another State
In Illinois, if a divorcing couple has children, the court can or must decline jurisdiction if Illinois if the children don’t live in Illinois.
The child custody portion of any divorce case is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA’s general rule is that “[o]nce a state makes an initial child custody determination, the statute gives the state exclusive continuing jurisdiction.” In re Marriage of Milne, 109 NE 3d 911 – Ill: Appellate Court, 2nd Dist. 2018
That “initial child custody determination” can only be made if the child, typically, has lived for six months in that state or country. “[A] court of this State has jurisdiction to make an initial child-custody determination only if:(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State” 750 ILCS 36/201
Again, Illinois can always decline jurisdiction if the state is inconvenient or inappropriate.
“A court of this State which has jurisdiction under this Act to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.” 750 ILCS 36/207(a)
But, if an Illinois court does decline jurisdiction of the child custody issues, an Illinois court is not required to decline jurisdiction of the remaining financial issues.
“A court of this State may decline to exercise its jurisdiction under this Act if a child-custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.” 750 ILCS 36/207(d)
Custody jurisdiction and the divorce jurisdiction are two separate things in Illinois.
“Custody jurisdiction does not depend on jurisdiction for termination of marriage.” In re Marriage of Schoeffel, 644 NE 2d 827 – Ill: Appellate Court, 4th Dist. 1994
This quirk of Illinois family law provides potential Illinois litigants with even more opportunities to forum shop not just their divorce case but parts of their divorce cases.
Stopping A Person From Filing For Divorce In Another State
Filing other divorces between the same two parties in other venues is expensive at best and creates overt conflicting orders at worst.
Once you have Illinois jurisdiction and the other party has been served, can’t you simply order the other party NOT to file for divorce in another jurisdiction?
If the party filed for divorce in another state using a fictitious residence to establish residency there, that party could indeed be ordered to not file other actions in other jurisdictions because of the presumption of fraud. Russell v. Russell, 329 Ill. App. 580 (1st Dist. 1946)
In the absence of overt fraud or other bad acts, enjoining a party from exercising their rights in another jurisdiction is probably impossible.
“The issuance of a temporary injunction enjoining the proceeding in the court of another State is deemed an extraordinary remedy, and will be exercised sparingly.” Kleinschmidt v. Kleinschmidt, 99 NE 2d 623 – Ill: Appellate Court 1951
So, if your spouse filed in Illinois and you have a Florida residence, give me a call to see which jurisdiction works best for you. You still have the option to have your case heard in Florida if that is indeed the most convenient jurisdiction.
