Everything matters in an Illinois divorce…until it does not. Divorce courts deal with issues brought forward by the parties and the courts do their best to eliminate those issues via temporary orders and settlements between the parties.
Yesterday’s emergency may become today’s dismissal or settlement. To memorialize the finality of the resolved issue, the last order regarding that issue will read that the matter is “dismissed with prejudice.”
Conversely, an order could leave the threat of the issue returning to court by noting that the matter is “dismissed without prejudice.”
Does it matter whether an issue is dismissed with or without prejudice in an Illinois divorce court?
Probably not.
Dismissing A Divorce Pleading Without Prejudice
Motions to dismiss should be targeted at pleadings alone (as opposed to motions)
Every divorce in Illinois starts with the same pleading, a petition for dissolution of marriage.
A pending pleading can be dismissed if there is something inherently faulty about that pleading.
“All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.” 750 ILCS 5/615(a)
A pending pleading can also be stricken if there is something outside the pleading that renders the pleading moot.
“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:
(1)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. (2) That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued. (3) That there is another action pending between the same parties for the same cause. (4) That the cause of action is barred by a prior judgment. (5) That the action was not commenced within the time limited by law. (6) That the claim set forth in the plaintiff’s pleading has been released, satisfied of record, or discharged in bankruptcy. (7) That the claim asserted is unenforceable under the provisions of the Statute of Frauds. (8) That the claim asserted against defendant is unenforceable because of his or her minority or other disability. (9) 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
There is usually only one pleading in an Illinois divorce action, the petition for dissolution of marriage.
A petition for dissolution of marriage only has three elements that must be pled: 1) the parties were married, 2) one party lived in Illinois for 90 days and 3) there are irreconcilable differences between the parties.
“The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding:
Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401
If the parties were not married, a petition for dissolution can be dismissed.
If one of the parties did not live in Illinois for 90 days the petition for dissolution of marriage can be dismissed. (Note: by the time this motion to dismiss gets heard, one party usually has been in Illinois for 90 days)
If there are not irreconcilable differences between the parties, the petition for dissolution of marriage can be dismissed. (Note: even if one person testifies that there are irreconcilable differences, that is sufficient for the court to allow the petition for dissolution of marriage to proceed).
Any petitioner may voluntarily dismiss their case without prejudice. “The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” 735 ILCS 5/2-1009(a)
Petitions for dissolution of marriage cannot get dismissed with prejudice.
It would be absurd to dismiss a petition for dissolution with prejudice as that would prevent the parties from ever getting a divorce again.
Non-divorce actions, however, may be dismissed with prejudice after the trial or hearing has begun.
“After trial or hearing begins, the plaintiff may dismiss, only on terms fixed by the court” 735 ILCS 5/2-1009(b)
“If trial or hearing has begun, then under…[735 ILCS 5/2-1009], the plaintiff can dismiss only “on terms fixed by the court,” one of which, of course, could be dismissal with prejudice.” Kahle v. John Deere Co., 104 Ill. 2d 302, 305-6 (Ill. 1984)
Motions, which are distinct from pleadings, may be dismissed by an Illinois divorce court with ease…but not with or without prejudice due to their temporary nature.
Dismissing Motions Without Prejudice In An Illinois Divorce
A motion “is an application to the court for a ruling or an order in a pending case.” In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993).
If an Illinois divorce case is pending, virtually every motion is brought under the Illinois Marriage and Dissolution of Marriage Act’s temporary relief section which states that “[e]ither party may petition or move for:…other appropriate temporary relief” 750 ILCS 5/501(a)(3).
Motions come and go during the course of an Illinois divorce. Many motions will denied, withdrawn or dismissed.
The question is whether those motions can be revived after it has been that the denial, withdrawal or dismissal is “with prejudice” or “without prejudice.”
Like most issues in Illinois law, the substance matters more than the form. There are no magic words that always have the same effect.
“[T]he effect of a dismissal order is determined by its substance and not by the incantation of any particular magic words,” and therefore, a trial court’s description of a final judgment as being “without prejudice” or “with prejudice” is not determinative.” Schal Bovis, Inc. v. Casualty Insurance Co., 314 Ill.App.3d 562, 568, 247 Ill.Dec. 750, 732 N.E.2d 1082 (1999).
Every temporary order in an Illinois divorce, including orders that dismissed a motion, does not prejudice future rights and can be “revoked or modified.”
“A temporary order entered under this Section:(1) does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing; and(3) terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.” 750 ILCS 5/501(d)
Temporary orders which are the result of an agreement between parties are binding contracts. But these “contracts” are modifiable as any other order based on the understanding that the agreed order was temporary in nature and did not prejudice the parties’ rights.
Perhaps only a finding of promissory estoppel could result in a motion for the modification of a temporary agreed order to be dismissible.
There is only one possibility (in this author’s opinion) where an Illinois divorce court can truly dismiss a motion with prejudice: if that Illinois divorce court heard the issue completely and already ruled upon it.
Res Judicata is a concept whereby a court can say “been there, done that.”
“Res judicata is an equitable doctrine designed to prevent multiple lawsuits between the same parties where the facts and issues are the same. Under the doctrine, a final judgment on the merits rendered by a court of competent jurisdiction operates to bar a subsequent suit between the same parties and involving the same cause of action.” Lutkauskas v. Ricker, 2015 IL 117090
But Res Judicata should only apply when there’s been a final order…which only occurs after the entry of a Judgment of Dissolution of Marriage.
“Three requirements must be satisfied for res judicata to apply: (1) the rendition of a final judgment on the merits by a court of competent jurisdiction; (2) the existence of an identity of cause of action; and (3) identity of the parties or their privies.” Lutkauskas v. Ricker, 2015 IL 117090
In an Illinois divorce, orders before the judgment for dissolution of marriage are entered are not encumbered by the finality required to invoke res judicata.
“The intent of the subsection [regarding temporary relief, 750 ILCS 5/501,] is to make clear that the amount established for temporary support will not prejudice the parties at later hearings held to determine the amount of permanent support. The subsection is also intended to preclude the application of res judicata principles to grants of temporary relief visa-vis permanent relief. Case law has supported the proposition that temporary [orders are] effective only until the termination of the dissolution proceedings.” In re Marriage of Bush, 209 Ill. App. 3d 671, 675 (Ill. App. Ct. 1991)
With prejudice. Without prejudice. These words mean nothing in an Illinois court of law.
“[U]nder Illinois law, as explained above, all dismissals, be they with or without prejudice, become final and unalterable judgments under Illinois law after 30 days unless a party takes some action. Thus, under Illinois law, there is no reason to give particular significance to the fact that a dismissal was with prejudice.” Director of Ins. v. a a Midwest Rebuilders, 383 Ill. App. 3d 721, 726 (Ill. App. Ct. 2008)
Why do we even use these words: “with prejudice” or “without prejudice?”
The distinction between dismissals with prejudice is very important in federal law that deal with a multitude of complaints, not just Petitions For Dissolution of Marriage. The formality of the procedures in federal court requires dismissals without prejudice to give parties a second opportunity to file their petition correctly.
“District courts routinely do not terminate a case at the same time that they grant a defendant’s motion to dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the plaintiff at least one opportunity to amend her complaint.” Foster v. DeLuca, 545 F.3d 582, 583 (7th Cir.2008)
Divorce lawyers who hear fancy phrases like “without prejudice” from a prestigious federal trial practice attorney are prone to borrow them without any real understanding of what they mean.
The words “without prejudice” in an order may have some impact…if you try to appeal.
“[a]n order dismissing an action ‘without prejudice’ is not deemed final for purposes of appeal.” Paul H. Schwendener, Inc. v. Jupiter Elec. Co., Inc., 358 Ill. App. 3d 65, 73 (2005)
An order that says “without prejudice” specifically allows the party to revive their motion. That order is not final.
“By its very terms, [an appeallate court’s jurisdiction] under Supreme Court Rule 304(a) is limited to the review of final orders.” Paul H. Schwendener, Inc. v. Jupiter Electric Co., Inc., 358 Ill. App. 3d 65, 73 (2005)
If you would like to hire a lawyer who knows what the words in your order mean…and do NOT mean, contact my Chicago, Illinois family law firm today to schedule a free consultation with an experienced Illinois divorce attorney.
