Posted on July 18, 2023

Dismissing A Divorce For Want Of Prosecution In Illinois

Divorces get filed and sometimes never go anywhere. The court system hates being clogged up with divorce actions that never get resolved. So, an Illinois court is empowered to dismiss a divorce action if the Petitioner is not doing anything with the divorce case. These dismissals of divorce cases for failure to actually work the case are called a “dismissal for want of prosecution.”

A dismissal for want of prosecution is “[a] court’s dismissal of a lawsuit because a plaintiff has failed to pursue the case diligently toward completion.” Black’s Law Dictionary (11th ed. 2019)

Local rules govern the dismissal of an entire divorce case for want of prosecution in Illinois.

In Cook County, “[a]ll cases shall be called for status report no later than six (6) months after the case is filed. Failure of the petitioner to answer the status call shall result in a dismissal for want of prosecution.” Cook County Court Rule 13.4(h)

Allowing a divorce to get dismissed has a multitude of effects beyond simply not getting divorced. Any subsequently filed divorce (they always get refiled) will be governed by the new date of the filing.

Child support can only be awarded after filing the new petition for dissolution of marriage.

“[T]he circuit court [has] the statutory authority to award…maintenance and child support from the date of [the] request in the petition for dissolution” In re Marriage of Hochstatter, 2020 IL App (3d) 190132

While child support gets cut short by a new divorce filing, maintenance payments’ duration will be extended.

“The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)

Assets and debts acquired during a marriage and, thus, divided at the time of divorce are not affected by a filing date.

Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions.” 750 ILCS 5/503(d)(3)

College expense contributions can only be awarded by request. If there’s no divorce…there’s no request for college expense contribution.

“The establishment of an obligation to pay under this Section is retroactive only to the date of filing a petition.” 750 ILCS 5/513(k)

Marital property is marital and, thus, divisible…until the divorce is finalized.

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

Property is not somehow non-marital and, thus, non-divisible simply because the parties have separated.

“To hold that the parties did not accrue marital property after the date of physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994

Dissipation of assets is also limited by the date the petition for dissolution of marriage’s filing (well, five years prior to the filing of the petition of dissolution of marriage)

“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage” 750 ILCS 5/503(d)(2)(iv)

If a divorce case does get dismissed for want of prosecution, you will be notified and can quickly revive the case via a motion to vacate the dismissal.

“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section.” 735 ILCS 5/2-1401(a)

You can then buy yourself up to another year of inactivity by informing the court that the parties are reconciling (this is a big reason for inactivity in an Illinois divorce). You will then be placed on the “reconciliation calendar”

“All cases on the reconciliation calendar shall be called for status within one year, and if the matter has been on the calendar for one year it will be dismissed or returned to the active calendar. If the case has been on the reconciliation calendar for less than one year on the status date, then the court may continue the case on the reconciliation calendar for a period not to exceed one year. Failure of the petitioner to respond to the status call shall result in a dismissal for want of prosecution.” Cook County Court Rule 13.g(i)

Alternatively, a divorce action (and all of the timing considerations) can be revived within a year under the Illinois code of civil procedure.

If “the action is dismissed for want of prosecution….the plaintiff….may commence a new action within one year…after…the action is dismissed for want of prosecution” 735 ILCS 5/13-217

A Petition For Dissolution Of Marriage is probably the only real pleading in an Illinois divorce. Every contested divorce contains a bevy of motions for relief for the court to decide while the divorce is pending. It’s very tempting for a party to a divorce to file many motions in the heat of anger or in an abundance of caution …and then do nothing with those motions. Months or even years later, they ask the court to hear their old motion after you had forgotten they even filed it.

What can you do about these old zombie motions that linger in the background? You can ask that old motions be dismissed for failure of the filer to demand that the motion be heard promptly.

The local rules almost always determine the dismissal for failure to prosecute. I practice often in Cook County, Illinois (but I do practice everywhere in Illinois and Florida) where the law is:

“The burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay.” Cook County Court Rule 2.3

Illinois courts can dismiss motions or citations for any reason they deem fit not merely because of a lack of action.

[T]he trial court possesses the inherent authority to control its own docket and the course of litigation, including the authority to prevent undue delay in the disposition of cases caused by abuse of litigation process.” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)

Courts usually are not so capricious. Courts will only dismiss a divorce case for a want of prosecution or for a violation of rules and/or orders.

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision…of 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 enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

….

That any portion of the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue.” Ill. Sup. Ct. R. 219(c)(vi)

Stay on top of your Illinois divorce case! If you cannot keep moving towards a conclusion, a divorce…your divorce may move on without you. If you would like help keeping your Illinois divorce case moving, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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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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