The Illinois divorce process is very regimented. There are a series of steps that the petitioner and the respondent must follow. If either party doesn’t follow those steps, then the judge calls a “foul” and if it gets too bad, you can forfeit your divorce case. Sports metaphors aside, when you or your spouse don’t participate in an Illinois divorce, someone gets held in default. So what is a default divorce in Illinois?
What exactly is a Default Divorce in Illinois?
A default divorce in Illinois is where the other spouse does not do the bare minimum to participate. 90% of the time this is the failure to file an appearance and respond to a petition for dissolution of marriage.
If you haven’t yet filed the divorce, you may have simply prepared final divorce documents only to find that your spouse refuses to sign the divorce papers. If that’s the case, your next step is to file your divorce and serve your spouse with the petition for dissolution of marriage.
The respondent in an Illinois divorce must file their answer and appearance within 30 days of being served (and you don’t count the day you were served).
“When the summons requires appearance within 30 days after service, exclusive of the day of service (see Rule 101(d) ), the 30-day period shall be computed from the day the copy of the summons is left with the person designated by law and not from the day a copy is mailed, in case mailing is also required. The defendant may make his or her appearance by filing a motion within the 30-day period, in which instance an answer or another appropriate motion shall be filed within the time the court directs in the order disposing of the motion. Ill. S. Ct. R. 181(a)
So, while it may feel like there is a lot of pressure to formally answer the petition within 30 days, usually just an appearance form filed is sufficient to meet the 30 day deadline.
“If the defendant’s appearance is made in some other manner, nevertheless his or her answer or appropriate motion shall be filed on or before the last day on which he or she was required to appear.” Ill. S. Ct. R. 181(a)
If 30 days after service have passed and nothing is filed by the respondent, you can file a motion to hold the respondent in default. You’re going to have to send notice of this motion to the respondent even though the respondent has not filed an appearance indicating where you should send notices to. Just send the notice of motion to wherever you served the respondent.
“Judgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” 735 ILCS 5/2-1301(d)
My firm’s practice is to get an order holding the respondent in default on a separate date before finalizing the divorce. Too many respondents have shown up to the last hearing for default AND judgment only to have the judge continue anything.
If the default has already been entered and the respondent shows up begging for more time at the entry of the final judgment, the judge usually says, “Sorry. You’re too late.”
Judges are unsympathetic to delaying the entry of a default judgment after the default order has been entered because by that time, the respondent has already been notified twice.
“Notice of entry of default order. (a) Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party’s attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity or effect of the order.” 735 ILCS 5/2-1302
So, remind the judge that your defaulting spouse has already been notified twice.
In fact, after 30 days, the defaulting spouse can’t even ask to vacate the default (at least without a lot of steps explained later).
“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/1-1301(e)
Judges want to be fair (that is their job). So, judges usually like to give a defaulting respondent a second or even third chance.
“[E]ntry of default is a drastic remedy that should be used only as a last resort.” In re Haley D., 2011 IL 110886, ¶ 69; Venzor v. Carmen’s Pizza Corp., 235 Ill. App. 3d 1053, 1058 (1992).
“Illinois public policy prefer[s] to decide cases on the merits rather than dismissing them on purely procedural grounds.” Midwest Builder Distr. v. Lord Essex, 383 Ill. App. 3d 645, 665 (Ill. App. Ct. 2007)
“A trial court should deny a motion for default judgment when it results in the denial of substantial justice” Dupree v. Hardy, Docket No. 4-10-0351, 10 (Ill. App. Ct. 2011)
Judges threaten to default parties who do not participate in cases after their appearance and responsive pleadings have been filed. But, judges can’t really do that. All that judges can do when a party stops participating in the legal process is order a trial. A divorce trial without a defense is almost exactly like a default divorce anyways.
So, if you are buying time in your divorce case, just be sure you filed your answer and appearance. You can be sanctioned for not cooperating after that point but you can’t be defaulted.
What If I Never Served My Spouse? How Do I Get A Default Judgment of Divorce in Illinois?
If you can’t find your spouse, you really have no other option than to get a default judgment of divorce in Illinois.
Defaulting someone who cannot be found is called “default by publication.”
To get a divorce by publication in Illinois, instead of personally handing the divorce papers to the respondent via regular service, you will be letting your missing spouse know that you want a divorce. The notice of your divorce is, essentially, an advertisement in the newspaper.
In order to get permission to serve via publication, you must fill out and file with the clerk an affidavit swearing that you don’t know where your spouse is.
“plaintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending.” 735 ILCS 5/2-206
You have to publish in a newspaper that sells copies in the county you filed in.
“[I]f service by publication is necessary, publication shall be in a newspaper published in such municipality if there is one.” 750 ILCS 5/410
If you are attempting service by publication, expect the judge to ask you how you searched for your spouse. You’ll need to list Facebook, Google and your spouse’s relatives.
In cases of service via publication, I don’t bother getting the default order separately from the final default judgment. It’s not like someone you can’t even find is going to miraculously read the newspaper and show up to the court date.
Subject Matter vs. Personal Jurisdiction In An Illinois Divorce?
If you got personal service on the defaulted spouse the court has two types of jurisdiction over the respondent. Subject matter jurisdiction and personal jurisdiction.
Subject matter jurisdiction refers to the court’s power “to hear and determine cases of the general class to which the proceeding in question belongs.” People vs. Castleberry 2015 IL 116916
In the case of a divorce, this means the court can decide on the subject matter at hand: the divorce. Having subject matter jurisdiction means the court can award a divorce.
Personal jurisdiction means the can bring a person into its adjudicative process. Meaning the court can order a person to do something
This is important because if there was only service by publication there is only subject matter jurisdiction. So, after service by publication, you can ask the court for a divorce but you cannot ask the court to force your spouse to give you money, divide property and debts, pay child support. All of those matters will be reserved.
What Can I Ask For In An Illinois Default Judgment?
A default judgment is the final judgment. Except, nothing is agreed because the other party won’t appear in court. So, the lawyers and the court titles everything as “default” so the record is clear as to what happened.
If you have personal jurisdiction over your spouse, you can ask for anything you want so long as it’s in compliance with the law.
You will attend a final hearing called a “prove up” where you must prove to the judge what you want. This is all done by oral testimony and the judge will believe everything you say…because no one is there to contradict you.
You will ask to receive your equitable share of the marital estate. You may be able to convince the judge to give you 100% of the marital estate based on your testimony alone. An Illinois divorce judge will still try to divide your estate pursuant to the law.
“[A] default judgment before a trial or prove up [does not] relieves the[ Petitioner] of proving their allegations…A default does not admit the conclusions in the complaint.” Universal Cas. Co. v. Lopez, 876 N.E.2d 273, 279 (Ill. App. Ct. 2007)
You will have to prove what you make and what your spouse makes if you’re asking for child support and/or maintenance pursuant to the Illinois guidelines. If you are unaware of your spouse’s income, you can ask for a deviation from guidelines and have an order entered based on you and your children’s needs as you testify to them.
Any request you make about children whether it be parenting time or decision making (formerly known as custody) will be granted in a default judgment.
What Else Is Required For A Default Judgment of Dissolution In Illinois?
Getting a default judgment of dissolution is a big deal Illinois. The entire system is set up so that everyone knows what is happening in a divorce and that there is a clear record of what happened.
A default judgment will not be entered without also filing an affidavit stating that the defaulted spouse is not in the military. We do not want our service members serving our country and getting divorced without knowing it.
Cook County courts require that a court reporter be present at the final prove up hearing.
“In all default cases, all testimony shall be recorded, transcribed, and filed with the Clerk of the Court.” Cook County Court Rules 13.7(a)
Default For Non-Compliance In An Illinois Divorce
A default order can be entered against a party who has filed their appearance and even appeared personally in court…if that party has violated the court’s rules.
“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision…the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may [request that the court enter] a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or that any portion of his pleadings relating to that issue be stricken.” Ill. S. Ct. R. 219(c)
Illinois courts will be hesitant to immediately put a party into default for matters such as discovery violations.
“A just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits…When imposing sanctions, the court’s purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)
Still, sanctions are used to “combat abuses of the discovery process and maintain the integrity of the court system.” Locasto v. City of Chicago,. 2014 IL App (1st) 113576, ¶ 27.
A litigant’s fundamental right to be heard and a litigant’s duty to follow the rules of the court they wish to be heard in requires a consideration of various factors.
“The factors a trial court is to use in determining what sanction, if any, to apply are: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 124 (Ill. 1998)
Defaulting someone’s entire case for failure to adhere to the rules is rare and discouraged.
“Dismissal or entry of a default judgment is a severe sanction and should be invoked only in cases where the party’s actions exhibit a deliberate, contumacious, or unwarranted disregard of the court’s authority and after all the other court’s enforcement powers have failed to advance the litigation.” In re Marriage of Booher, 313 Ill. App. 3d 356, 359 (2000)
Defaulted Divorces Still Need To Be Proven Up
A default order is not the last step in a default divorce.
“An order of default is not a final judgment or an interlocutory order appealable as of right because it does not dispose of the case and determine the rights of the parties. Rather, an order of default is simply an interlocutory order that precludes the defaulting party from making any additional defenses to liability but in itself determines no rights or remedies.” Fidelity National Title v. Westhaven Prop, 386 Ill. App. 3d 201, 211 (Ill. App. Ct. 2007)
A default order means you can now proceed straight to a prove up hearing without worrying about the defendant showing up and rebutting your claims.
“Even where there has been a default order entered, the plaintiff is still required to prove up [the required elements of the petition]” AAA Group Contractors, Inc. v. Alkilani, 2024 IL App (1st) 230366-U
What If My Spouse Doesn’t Follow The Default Judgment?
Your spouse didn’t even participate in the Illinois divorce process so why should you expect them to follow the court orders?
Well, after the order is entered and your spouse violates a term in the court order, you can file a motion that your spouse be held in contempt. Upon a finding of contempt, the court can issue a body attachment. A body attachment is a civil order of arrest.
The sheriff will pick up your contemptuous spouse and bring him or her to court where the contemnor (fancy word for the spouse who was held in contempt) must explain why they violated the court order. The court usually keeps the contemnor in the sheriff’s custody (jail) until the contemnor complies with the court order.
Can I Vacate A Default Judgment for Divorce In Illinois?
If you discover that you have a default judgment entered against you, you can vacate that judgment.
While there are specific rules as to how to vacate an order, those rules should be in favor of vacating default judgments. “The provisions of the Code of Civil Procedure governing relief from defaults are to be liberally construed toward that end [of vacating default judgments]…the overriding consideration [when vacating a default] is simply whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits.” In re Haley D., 2011 IL 110886, cited more recently by McNulty v. McNulty, 2022 IL App (1st) 201239
Even with that bias towards vacating defaults, the rules of vacating orders must be observed. As mentioned earlier, if the final judgment was entered within the last 30 days, you can file a motion to vacate and the court will accept almost any excuse and allow the judgment to be vacated.
“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e)
After 30 days, the standard because more stringent. To file a motion to vacate after 30 days you must show by a preponderance of the evidence each of the following: (1) the existence of a meritorious defense; (2) due diligence in presenting this defense in the underlying litigation; and (3) due diligence in the filing of this section 2-1401 petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209, 221 (1986)
Also, you only have a window of 2 years to file the motion to vacate.
“[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment.” 735 ILCS 5/2-1401(a)
It’s easy enough to show that the default judgement was unfair. The hard part is showing that you didn’t know about the default judgment and couldn’t have known about it. The petitioner must show that the entry of the final judgment not known to the petitioner and could not have been discovered through the exercise of reasonable diligence. Juszczyk v. Flores, 334 Ill. App. 3d 122, 128 (1st Dist. 2002)
When trying to vacate a default order, you can tell the judge that you’re willing to pay attorney’s fees for the vacating process as a “tax” in order to apologize for not being timely. Assessing attorney’s fees while vacating a default is a “proper exercise of the court’s discretion and within the scope of the authority granted it under Code of Civil Procedure section 2-1301(e)” Bachewicz v. American National Bank & Trust Company of Chicago, 135 Ill. App. 3d 294, 301 (1985)
For the party seeking to uphold the order, there is an interesting defense to an attempt to vacate a default order: claim that it wasn’t a default order at all. “[A] section 2-1301(e) motion is typically directed at a judgment on the pleadings.” Wolkowitz v. Jamison, 2024 IL App (1st) 230455
If instead, the case was thoroughly proven up with appropriate testimony, a judgment was not entered on the pleadings but, rather, a trial had occurred. It is not fair to give someone a second chance at trial when they’ve seen all the evidence in advance.
“[A] trial on the merits has already been held. The question then is whether it is fair, under the circumstances, to force the other side to go to trial a second time when the moving side was absent. Most of the winning side’s script is now etched in stone, thereby turning a prior proceeding into a mere dress rehearsal for the benefit of the missing party. The missing party is rewarded for its absence with a transcript of the other side’s case and a detailed explanation of the court’s reasoning and thinking, without having had to expose any of its own witnesses to cross-examination.” Wolkowitz v. Jamison, 2024 IL App (1st) 230455
If a trial on the merits has occurred then the only recourse is a motion to reconsider under 735 ILCS 5/2-1203 that states that “[i]n all cases tried without a jury, any party may, within 30 days after the entry of the judgment…file a motion…to vacate the judgment.” 735 ILCS 5/2-1203
“The purpose of a motion to reconsider is to bring to a court’s attention: (1) newly discovered evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing law.” Liceaga v. Baez 2019 IL App (1st) 181170
So, instead of saying, “oops. I forgot I had court,” the party trying to undo the judgment has to bring in new evidence, new law or a mistake the court made when entering the not-quite-a-default judgment.
If you weren’t really served or if the person served you by publication and it was obvious where you were at the time the order entered, it should be easy enough to reopen the case.
Additionally, only allocation of assets and waiver of maintenance are truly final in a divorce judgment. Most things like parenting time, ongoing maintenance and child support are modifiable after the Judgment For Dissolution of Marriage is entered.
If your Illinois divorce has been defaulted or would like to default your spouse in your Illinois divorce, contact my law office in Chicago, Illinois to speak to an experienced Chicago divorce lawyer.
