Posted on May 18, 2024

Due Diligence Of Service In An Illinois Divorce

All divorces in Illinois start the same. The Petition for Dissolution of Marriage is filed, the summons is issued by the court, and that summons and petition is served on the respondent (the other spouse).

“After the filing of the petition, the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411

The filing of a petition for dissolution and the clerk’s issuance of a summons are usually flawless. The service of those documents ends up being a little trickier…and there is no room for error.

“[T]he service of copies of pleadings shall be according to rules.” 735 ILCS 5/2-201

“It is well settled that strict compliance with statutory requirements in effecting service is essential for the court to obtain personal jurisdiction over the defendant.” Doe v. Logan, 2021 Ill. App. 191447, 6-7 (Ill. App. Ct. 2021)

Service happens by either handing the papers directly to the respondent or having someone at the respondent’s house accept those papers.

“Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode” 735 ILCS 5/2-203(a)

If the respondent to a divorce’s location or home are unknown, service is going to be difficult.

If the respondent to a divorce does not want to be served, the respondent merely need to not answer the door and only leave their house in their car via their garage to avoid service per the rules.

Usually, respondents are not so devious. In fact, it is usually the petitioner not following up on service which slows a divorce case down.

Petitioners have a duty to get their case moving!

“Promptly upon issuance, summons (together with copies of the complaint as required by Rule 104) shall be placed for service with the sheriff or other officer or person authorized to serve process.” Ill. S. Ct. R. 102(a)

The plaintiff “has a nondelegable duty to (1) assure the clerk issued the summons, (2) deliver the summons to the process server for service, and (3) see the process server made a prompt and proper return.” Smith v. Menold Construction, Inc., 348 Ill. App. 3d 1051, 1056 (2004)

Just issuing a summons, which starts the service process, is not enough to prove the petitioner was moving the case forward. Sullivan v. Nissen Trampoline Co., 82 Ill. App. 2d 1, 4-5 (1967)

If the petitioner in an Illinois divorce fails to serve the respondent for a long enough period, the respondent can request that the underlying divorce be dismissed.

“If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be dismissed without prejudice.”  Ill. Sup. Ct. R. 103(b)

“The dismissal may be made on the application of any party or on the court’s own motion. In considering the exercise of reasonable diligence, the court shall review the totality of the circumstances, including both lack of reasonable diligence in any previous case voluntarily dismissed or dismissed for want of prosecution, and the exercise of reasonable diligence in obtaining service in any case refiled under section 13-217 of the Code of Civil Procedure.” Ill. Sup. Ct. R. 103(b)

Rule 103(b) exists to encourage parties to resolve their disputes quickly in or out of court. A court has an “historical and constitutional mandate to render justice fairly and promptly.” Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 377 (1990)

Any dismissal of a divorce or parentage action just allows the petitioner to refile that same action. There is no statute of limitation for a divorce or parentage action…but there are filing timeline implications in a divorce or parentage action.

Specifically, a married party can only request maintenance or child support going back to the filing of the 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, with appropriate credit given for the temporary payments” In re Marriage of Hochstatter, 2020 IL App (3d) 190132

If the petition for dissolution of marriage is dismissed for lack of due diligence, any support owed during the time they weren’t served would be deemed lost.

Additionally, a court should only consider individual contributions of a spouse if the “the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)(iii)

If the initial petition for dissolution of marriage is dismissed, a court should not give weight to that, presumably, physically separated spouse’s individual savings and thus will divide those savings between the two spouses.

There are numerous other factors in a divorce that can be impacted by the filing date of the petition for dissolution of marriage. If the petition is dismissed for lack of due diligence, the subsequent petition’s new filing date controls.

Dismissing a petition for dissolution of marriage of lack of due diligent of service is not easy.

“In moving for dismissal under Rule 103(b), the defendant must initially make a prima facie showing that the plaintiff failed to exercise reasonable diligence in effectuating service after filing the complaint. Once the defendant establishes that the time between the filing of the complaint and the date of service suggests a lack of diligence, the burden then shifts to the plaintiff to provide a satisfactory explanation for the delay in service. In the absence of a satisfactory explanation, the trial court is justified in granting a Rule 103(b) dismissal.” Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 17

The late service alone is enough to show that the petitioner did not exercise due diligence in serving their spouse or the parent of their child(ren).

“[T]he lengthy delay, in and of itself, is a prima facie showing that plaintiffs failed to exercise reasonable diligence in serving defendant, shifting the burden to plaintiffs to provide a satisfactory explanation for the delay” Ollins v. Karl, 2022 IL App (1st) 220150, ¶ 45

The delay in service need not be very long either. Numerous cases have found that a delay under a year is sufficient to warrant dismissal for lack of due diligence.

Mular v. Ingram, 2015 IL App (1st) 142439 (10 ½ month delay); Long v. Elborno, 376 Ill. App. 3d 970, 980 (2007) (seven-month delay); Tischer v. Jordan, 269 Ill. App. 3d 301, 308 (1995) (4½-month delay in issuing alias summons after plaintiff’s counsel realized summons had not been placed for service and total 6-month delay in effecting service warranted dismissal).

The courts must consider the totality of the circumstances when determining if a dismissal based on lack of due diligence is appropriate.

“[W]hile actual notice or knowledge of the pendency of a suit or the lack of prejudice to the defendant are significant in that they may affect the judge’s determination as to whether the plaintiff was diligent, they are but two factors to be considered by the court in making that determination. Other factors include: (1) the length of time used to obtain service of process; (2) the activities of the plaintiff; (3) plaintiff’s knowledge of the defendant’s location; (4) the ease with which the defendant’s whereabouts could have been ascertained; (5) special circumstances which would affect plaintiff’s efforts; and (6) actual service on the defendant”  Womick v. Jackson County Nursing Home, 561 NE 2d 25 – Ill: Supreme Court 1990

Failure to serve a respondent is inexcusable now that service is allowed via email, social media and text message.

“(f) Service by Special Order of Court. Upon motion brought pursuant to Section 2-203 .1 of
the Illinois Code of Civil Procedure, the court may order service of summons and complaint to be made in a manner consistent with due process and subject to provisions of this paragraph.
(1) If the court is satisfied that the defendant/respondent has access to and the ability to use the necessary technology to receive and read the summons and documents electronically, the following alternative methods of service or combination of methods of service may be ordered by the court when granting a motion brought pursuant to Section 2-203 .1 of the Illinois Code of Civil Procedure (735 ILCS 5/2-203.1).
(A) Service by social media. Service by social media shall be made by (i) sending a
direct message to the defendant/respondent on a social media platform on which the
defendant/respondent has an active profile; (ii) attaching a copy of the summons,
complaint/petition, and any other required documents to the direct message; and
(iii) stating in the body of the direct message: “Important information-You have been
sued. Read all of the documents attached to this message. To participate in the case, you
must follow the instructions listed in the attached summons. If you do not the court may
decide the case without hearing from you, and you could lose the case.”
(B) Service by e-mail. Service by e-mail shall be made by (i) sending an e-mail to the
defendant/respondent at his or her current e-mail address; (ii) attaching a copy of the
summons, complaint/petition, and any other required documents to the e-mail; (iii) stating
in the subject line of the e-mail message : “Important information-You are being sued”;
and (iv) stating in the body of the e-mail: “You have been sued. Read all of the documents
attached to this e-mail. To participate in the case, you must follow the instructions listed in
the attached summons. If you do not, the court may decide the case without hearing from
you. and you could lose the case.”
(C) Service by Text Message. Service by text message shall be made by (i) sending a
text message to the defendant/respondent’s cellular telephone number; (ii) attaching a copy of the summons, complaint/petition, and any other required documents to the text message;
and (iii) stating in the body of the text message: “Important information-You have been
sued. Read all of the documents attached to this message. To participate in the case, you
must follow the instructions listed in the attached summons. If you do not, the court may
decide the case without hearing from you, and you could lose the case.” Ill. Sup. Ct. R. 102(f)

Failure to serve within a month or two followed by failure to request permission to serve via email, social media or text will almost surely result in a dismissal of your petition for dissolution of marriage.

Divorces must be done almost perfectly from the very beginning. Silly errors are often ignored or forgiven…unless the opposing side is willing to enforce rules like the requirement of due diligence.

Dismissing your spouse’s divorce petition will only cause them to file the petition again followed by prompt and proper service. The new filing date and its consequences better be worth it.

If you would like to discuss your divorce case with a diligent Illinois divorce attorney, contact my Chicago, Illinois family law firm today.

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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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