Posted on April 26, 2020

Dismissing a Divorce in Illinois

The first step in a divorce in Illinois is always filing a Petition For Dissolution Of Marriage.  The last step is the entry of the final divorce judgment or the granting of a motion to dismiss the divorce petition. How does a divorce get dismissed in Illinois?

Dismissing Your Spouse’s Petition For Dissolution Of Marriage.

If you don’t want to get divorced and your spouse has filed a Petition for Dissolution Of Marriage in an Illinois court, there may be a small change that you could get the matter dismissed via a motion to dismiss.

All motions to dismiss for any civil suit in Illinois are governed by 735 ILCS 5/2-619

“Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:” 735 ILCS 5/2-619(a)

So, a motion to dismiss can just be based on the fact that the grounds for divorce have not been properly pled (stated) in the petition for dissolution of marriage.

There are not a lot of grounds in an Illinois divorce. A petition for dissolution of marriage in Illinois requires the following.

“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)

So, if your spouse misses or doesn’t properly list one of those items in the petition for dissolution of marriage, you can ask that the matter be dismissed.

However, your spouse can just file an amended petition for dissolution of marriage that includes the proper verbiage and the divorce will proceed.

It may be tempting to ask that the petition for dissolution of marriage be dismissed because there are not “irreconcilable differences have caused the irretrievable breakdown of the marriage.” 

While you could tell the judge “Hey, we were getting along great last week,” the judge will likely reply, “If your spouse files for divorce that means there are irreconcilable differences that have caused the irretrievable breakdown of the marriage.”

Beyond errors in the pleading that can just be fixed with an amendment, there are bunch of other reasons you can dismiss a petition for judgment of dissolution.    

“That the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.” 735 ILCS 5/2-619(a)(1)

This is actually very common.  If one of the divorcing parties has not lived in Illinois for 90 days, the matter should be dismissed.

By the time the dismissal order comes around, one of the parties might be living in Illinois for the 90 days. Or the matter could just be refiled once the 90 days is up.

“That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued.” 735 ILCS 5/2-619(a)(1)

This is a very tragic and hardly ever used basis for dismissal. If your spouse is mentally ill or incapacitated, you could file a motion to dismiss based on that.  Because the whole basis of the motion is that your spouse cannot make decisions for themselves, you’ll likely need to file a motion for guardianship of your spouse in probate court.

“That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)

The best way to dismiss is a divorce is to say “We can’t get divorced because we were never married.”

Instead of a motion to dismiss in the case of a divorce petition for a marriage which never was, I’d recommend that you file a Petition for Invalidity of Marriage.  This way you can get a judgment on the record saying “we were never married.”

Reasons to invalidate a marriage in Illinois are:

“ (1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;
    (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
    (3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or
    (4) the marriage is prohibited.” 750 ILCS 5/301

Prohibited marriages are marriages where someone is underage, closely related to their spouse, or already married.

How Do I Dismiss My Spouse’s Motion In An Illinois divorce? 

Motions are requests to the court for temporary relief until the divorce is finalized.

Petitions are pleadings like a Petition for Dissolution of Marriage. Pleadings require a very specific and didactic answer format that motions do not require

If your spouse’s motion is so unjust, outrageous or just dumb, the motion will just have to be heard and you’ll have to defend it.  You’re allowed and encouraged to explain all the defects to the motion in your answer to that motion.

How Do I Dismiss My Own Petition For Dissolution Of Marriage In Illinois?

You may have had a change of heart and you’d like to have a second chance at your marriage.

If this is the case, any judge will grant your motion to dismiss your petition for dissolution of marriage.

You do not need your spouse’s permission to dismiss your petition for dissolution of marriage.  But, if your spouse still wants to get divorced they can file a counter-petition for dissolution of marriage before your motion for dissolution is granted.

But, for most people, you probably just want some breathing room and to put the divorce on hold.

You don’t have to do anything for 6 months if there’s no ongoing litigation in the case.  In Cook County courts, they just ignore the case for the first 6 months.  After 6 months, you have to tell the court what you’re doing or the court will dismiss your case for you.

“All cases shall be called for status report no later than 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) 

If your divorce case gets dismissed for want of prosecution, you can always revive it within 30 days with almost any excuse.

“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)

If you’re over 30 days, you can still revive the case within a year (but you only get one shot at it)

“[T]he plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater” 735 ILCS 5/13-27

If your Illinois divorce cases’ first six months are up, you can request up to a year to reconcile.

“All cases on the reconciliation calendar shall be called for status within one year, and if the matter has been on the calendar for twelve (12) months it will be dismissed or returned to the active calendar. If the case has been on the reconciliation calendar for less than twelve (12) months on the status date, then the court may continue the case on the reconciliation calendar for a period not to exceed twelve (12) months. Failure of the petitioner to respond to the status call shall result in a dismissal for want of prosecution.” Cook County Court Rule 13.2(g)(i) 

Dismissing Your Petition For Dissolution Of Marriage For Strategic Reasons 

If a divorce isn’t going your way, you can just figuratively take your ball and go home by filing your own motion to withdraw your petition for dissolution of marriage or motion to dismiss your petition for dissolution of marriage. If you know you’re going to get a bad result, why not just opt out of the system entirely with a motion to dismiss.

You don’t even need to give notice to withdraw or dismiss your own petition. You can just make an oral motion in court and the court will grant it. It could even be on the day of trial and no one will be shocked.  This strategy is quite common. You can just restart in your own due time and you’ll probably even get a new judge.

If your spouse doesn’t have a counter-petition on file already, they will have to file a brand new petition for dissolution of marriage, get a new case number, serve you and start from scratch.

This is why you should almost always file a counter-petition for dissolution of marriage unless the divorce is truly agreed.

The other reason people file motions to dismiss for strategic reasons is to avoid discovery.  For a silly example, if the oil well in their backyard is producing lots of oil and they don’t want to reveal that, they can just dismiss the divorce and file again later when the oil runs out.

If your spouse voluntarily dismisses their petition for dissolution of marriage because they are trying to avoid discovery you can pursue your spouse for sanctions under Supreme Court Rule 219(e)

“Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, expert witness fees, reproduction costs, travel expenses, postage, and phone charges.” Ill. S. Ct. R. 219(e) (eff. July 1, 2002)

This doesn’t mean the case stays undismissed, it just means that your spouse will have to pay for all the extra effort of refiling the case.

If you’d like to explore your options in dismissing a divorce or would like to learn how you can protect yourself from your spouse dismissing your divorce contact my Chicago law practice which focuses on Illinois divorce and family law.

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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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