Posted on December 5, 2023

Divorce In Illinois When The Children Live In Another State

When two parents live in different states, the divorce can be filed in either state. If the children live in Illinois, it makes sense to file the case in Illinois to resolve the children’s issues.

But, do you have the option to file and finalize the divorce case in Illinois even if the children do not live in Illinois?

UCCJEA Usually Determines The Jurisdiction Of The Proceedings In A Divorce With Children

Illinois has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It’s a model statute that Illinois and 48 other states have incorporated into their own statutes to ensure consistency when there’s a question of which state’s laws should govern the custody of a child whose residency is in question.

The Illinois Marriage and Dissolution of Marriage Act’s 750 ILCS 36/201 directs Illinois courts to initially enter parenting time, parental decision-making and child support orders only if the children live in or have lived-in Illinois for a specified amount of time.

“[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;(2) a court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 207 or 208, and:(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and(B) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 207 or 208; or(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.” 750 ILCS 36/201

The determination of whether a state can invoke jurisdiction under their UCCJEA is based on whether the state is the children’s home state.

“’Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” 750 ILCS 36/102(7)

Six months residency is the golden rule if you want to proceed with a child custody matter. There is a labyrinth of other rules if the child has not been in any state for six months or has not even been alive for six months.

“Once jurisdiction has been established, a court may decline to exercise jurisdiction in light of certain circumstances….[and e]ven if a court of this state has exclusive and continuing jurisdiction, it may nonetheless decline to exercise that jurisdiction if it finds that Illinois is an inconvenient forum under section 207 of the UCCJEA.” IN RE MARRIAGE OF RICKETT, 155 NE 3d 1104 – Ill: Appellate Court, 3rd Dist. 2020

“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.” 750 ILCS 36/207

“The primary objective of the trial court in considering whether to decline to exercise jurisdiction over custody disputes is to determine which court can most capably act in the best interests of the children.” IN RE MARRIAGE OF RICKETT, 155 NE 3d 1104 – Ill: Appellate Court, 3rd Dist. 2020

While a If the children have lived in another state and a divorce is filed in Illinois, expect the out-of-state parent to file a motion to dismiss the Illinois divorce case based on 750 ILCS 36/201’s requirement.

Additionally, the out-of-state parent can invoke the doctrine of forum non conveniens by saying that it would be impossible to adequately determine custody in Illinois when the children live in another state.

Forum non conveniens is “[t]he doctrine that an appropriate forum – event though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnessses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place.” Black’s Law Dictionary (11th ed. 2019)

“Forum non conveniens is applicable when the choice is between interstate forums as well as when the choice is between intrastate forums.” Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 832 (2009).

Furthermore, the out-of-state parent may not have any connection with Illinois beyond having a co-parent who lives there. The out-of-state parent could claim that Illinois has no jurisdiction over them based on the Illinois Code of Civil Procedure.

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

(5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;

(6) With respect to actions brought under the Illinois Parentage Act of 1984,  1 as now or hereafter amended, or under the Illinois Parentage Act of 2015   2 on and after the effective date of that Act, the performance of an act of sexual intercourse within this State during the possible period of conception;

(7) The making or performance of any contract or promise substantially connected with this State;

(8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;

(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State;

(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;

(11) The breach of any fiduciary duty within this State;

(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;

(13) The ownership of an interest in any trust administered within this State; or

(14) The exercise of powers granted under the authority of this State as a fiduciary.” 735 ILCS 5/2-209(a)

The parent who has the child(ren) will almost always be allowed to prosecute the divorce in their home state and can, therefore, dismiss any existing case in Illinois.


What If The Parents Agree To Proceed With An Illinois Divorce When The Children Live Out Of State?

If the parents wish, they can proceed with their Illinois divorce by agreement even if the children live in another state. They shouldn’t…but they can under McCormick vs. Robinson.

Parents of out-of-state children may have “failed to meet the statutory criteria with respect to initial child-custody determinations. As it properly recognized, however, the circuit court’s decision to proceed notwithstanding those deficiencies may have been error, but it was not beyond the circuit court’s jurisdiction.

To be sure, section [750 ILCS 36/]201 does speaks in terms of “jurisdiction” when describing the conditions which must be met before an Illinois court will consider and decide the question of initial child custody. As used in the statute, however, “jurisdiction” must be understood as simply a procedural limit on when the court may hear initial custody matters, not a precondition to the exercise of the court’s inherent authority.

The determination of who should have custody of [a child]. clearly presented a justiciable matter. It therefore fell within the subject matter jurisdiction of the circuit court of [an Illinois county]. Once a court has subject matter jurisdiction over a matter, its judgment will not be rendered void nor will it lose jurisdiction merely because of an error or impropriety in its determination of the facts or application of the law.” McCormick v. Robertson, 28 NE 3d 795 – Ill: Supreme Court 2015 (citations omitted)

An agreed Illinois order for child issues when the child does not live in Illinois is not void…but it is voidable.

A void judgment (as discussed in McCormick vs. Robertson) can be vacated at any time because it never should have been entered in the first place.

“A void order or judgment is, generally, one entered by a court without jurisdiction of the subject matter or the parties, or by a court that lacks the inherent power to make or enter the order involved. A void judgment is from its inception a complete nullity and without legal effect.” Ford Motor Cre. Co. v. Sperry, 214 Ill. 2d 371, 379 (Ill. 2005)(citations omitted)

Voidable judgments like an Illinois agreement for custody of a child who is out-of-state, can be vacated…but only after going through the myriad of steps required by 750 ILCS 5/-1401 motion to vacate (which are almost never vacated after 2 years).

“A voidable judgment is one entered erroneously, either through mistake of fact or law or both, by a court having jurisdiction and is not subject to collateral attack… A voidable judgment may only be challenged directly, and the challenger must proceed under section 2-1401 and comply with all the requirements of that section.” In re Custody of Ayala, 344 Ill. App. 3d 574, 584 (Ill. App. Ct. 2003)

Why Consider Illinois Over Another State For Your Divorce?

Agreeing to resolve children’s issues in Illinois when the children do not even live in Illinois seems silly. But there may be a method to one of the parent’s madness. One parent may want to take advantage of Illinois’ laws in the future.

Illinois’ laws regarding children can be characterized as follows:

Child custody tends to be more flexible in Illinois than other states (Florida, for example, where I am also licensed and practicing).

Child support in Illinois is relatively modest compared to other states. However, Illinois requires child support for adult disabled children.

Illinois courts can order that a parent pay for college expenses (this is not the rule in most other states).

If you are facing divorce and the option of filing in Illinois and another state, please contact an excellent lawyer in each state to properly strategize as to which state’s laws benefit you and your family. Obviously, your Illinois consult should be with my Chicago, Illinois family law firm where you can obtain a free consultation 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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