Posted on September 19, 2021

Due Process In An Illinois Divorce

Divorce is the untangling of two lives through the public state courts. Divorce is a process. That process needs to be fair. It is not enough for the parties to merely follow the law as written. The parties must be able to exercise their rights throughout the process while the administrator of the process (the judge) ensures the fairness of the divorce process.

This concept of fairness inside and outside the courtroom during a dispute is called “due process”

Due process is “law in its regular course of administration through courts of justice.” Black’s Law Dictionary (10th ed. 2014)

“Due process entails an orderly proceeding wherein a person is served with notice, and has an opportunity to be heard and to present his or her objections, at a meaningful time and in a meaningful manner, in a hearing appropriate to the nature of the case.” Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 31.

The U.S. Constitution enshrines this right to due process.

“No person shall … be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.

“…nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

The Illinois Constitution reads the same.

“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Ill. Const. Art. 1. Sec. 2

There are two kinds of due process: substantive due process and procedural due process.

Substantive Due Process In An Illinois Divorce

Substantive Due Process is when a court “observes that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Washington v. Glucksberg, 521 U.S. 702, 703 (1997)

So, if a law is fundamentally illiberal, unfair or offensive to American values, a court can declare the law unconstitutional due to “substantive due process.”

The Due Process Clause “includes a substantive component that `provides heightened protection against government interference with certain fundamental rights and liberty interests.'” Troxel, 530 U.S. at  120 S.Ct. at 2059-60, 147 L.Ed.2d at 56,

For example, the right of a parent to parent their own child has been held to be a fundamental right.

“One of the most fundamental of those rights is the right to raise one’s children.” In re Amanda D, 349 Ill. App. 3d 941, 946 (Ill. App. Ct. 2004)

Therefore, any laws about grandparent’s rights are in violation of that fundamental right to raise one’s children and is, therefore, unconstitutional.

“[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a `better’ decision could be made.” Troxel, 530 U.S. at ___, 120 S.Ct. at 2064, 147 L.Ed.2d at 61.

It will be rare that a fundamental right will be impacted in an Illinois divorce proceeding. Divorces involve a lot of money and property. Anything having to do with money or property is a non-fundamental right.

If a party has an interest that is impacted by a law but that interest is not a fundamental right, Substantive Due Process can still render a law unconstitutional under the rational basis test.

“In evaluating a substantive due process claim concerning non-fundamental rights, the court applies the “rational basis test.”  Under this test, the court must determine whether the legislation has a reasonable relationship to the public interest sought to be protected and whether the means the legislature adopted to achieve its goals reasonably related to such goals.” In re Marriage of Beyer and Parkis, 753 NE 2d 1032 – Ill: Appellate Court, 1st Dist., 1st Div. 2001 (Citations Ommitted)

For example, there used to be an automatic freeze of divorce litigants’ assets but the Illinois Supreme “[C]ourt found no rational relationship between the provision freezing the parties’ nonmarital assets, as well as marital assets, and the law’s goal of preventing the dissipation and concealment of marital assets once dissolution proceedings have begun.” Kaufman, Litwin and Feinstein v. Edgar, 704 NE 2d 756 – Ill: Appellate Court, 1st Dist., 2nd Div. 1998 describing Messenger v. Edgar, 157 Ill.2d 162, 176

Under the rational basis test, the stay on disposing assets during a divorce was deemed unconstitutional in Illinois.

There aren’t real black and white rules for Substantive Due Process challenges. “Due process is not a fixed concept unrelated to time, place and circumstances. Rather, it is a flexible concept and requires a consideration of the legislative objective and purpose in determining whether a statute is unconstitutionally vague.”In re Marriage of Thompson, 398 NE 2d 17 – Ill: Appellate Court, 1st Dist. 1979 (Citations Omitted)

These substantive due process challenges are incredibly rare in an Illinois divorce but they help explain the much more common Procedural Due Process challenge.

Substantive Due Process issues can arise if contempt issues occur in a divorce which become criminal in nature. Criminal issues involve many more fundamental rights than civil matters. “[T]he collection of money due under valid orders of the court; and they are civil in nature and, thus, are not subject to the due-process requirements of indirect criminal contempt proceedings.” People ex rel. Kazubowski v. Ray, 272 NE 2d 225 – Ill: Supreme Court 1971

Procedural Due Process In An Illinois Divorce

Procedural Due Process is a failure in legal procedure which makes the legal process unfair. The legal process can be unfair. So, this happens a lot!

Due process is a flexible concept, which “calls for such procedural protections as the particular situation demands.”Mathews v. Eldridge, 424 U.S. 319, 334 (1976)

Procedural due process is met “by having an orderly proceeding wherein a person is served
with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect
his rights.” Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 244 (2006)

A denial of procedural due process is either a failure to receive notice or a failure to have a hearing on a contested issue.

“The essence of due process is procedural fairness, as embodied in the elements of notice and opportunity to be heard. As long as these elements are satisfied, a party is not denied due process, even if he fails to avail himself of his opportunity to be heard.” Milenkovic v. Milenkovic, 416 NE 2d 1140 – Ill: Appellate Court, 1st Dist. 1981

Notice is required for an Illinois court to do anything. It is not fair for a court to be making decisions about your life when you’re not even told that the decision will be made.

“A fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information.” Stratton v. WENONA COM. UNIT DIST., 551 NE 2d 640 – Ill: Supreme Court 1990

“The requisites of due process are satisfied if the manner of effecting service of summons gives reasonable assurance that notice will actually be given and the person against whom the action is brought is given reasonable time to appear and defend on the merits.” People ex rel. Loeser v. Loeser, 283 NE 2d 884 – Ill: Supreme Court 1972

If you have an attorney, your attorney can accept notice for you.

“The law is well settled that notice to an attorney is notice to the client who employs him, and knowledge of an attorney is knowledge of or imputed to his client.” People ex rel. Rogers v. Elrod, 340 NE 2d 598 – Ill: Appellate Court, 1st Dist. 1975

An Illinois divorce court can only issue an order without confirming notice on a temporary basis.

“The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” 750 ILCS 5/501(b)

More common than lack of notice in an Illinois divorce is the failure to be heard. A divorce is not adjudicating a moment in time like a criminal case or a personal injury tort. A divorce is the unpacking of at least two lives. Divorce judges don’t have time to hear every little thing that happened in the years of your relationship. But, if there’s a dispute…the Illinois divorce judge has to hear you out.

“Procedural due process generally refers to notice and the opportunity to be heard,” and the rights involved include “a right to present evidence and argument, a right to cross-examine witnesses, and impartiality in rulings upon the evidence which is offered.” Fischetti v. Village of Schaumburg, 2012 IL App (1st) 111008, ¶ 16.

Procedural fairness is a trial with all the elements. A perfect example is the case In re Marriage of Blaisdell where the husband complained of the process but was found to have had access to every element of a fair trial, even though he didn’t like the result.

“The procedural protections afforded to respondent in the trial court far exceeded any which are constitutionally required. He had the benefit of a full, public evidentiary hearing, under the Code of Civil Procedure, prior to the “deprivation” about which he complains. He received adequate notice of the subject of the hearing, which was conducted before a neutral decision-maker, to whom he was entitled to present evidence and witnesses, subject to compulsory process, and to make legal argument himself or through an attorney. He was entitled to and did confront and cross-examine the only adverse witness, using documents obtained in regular civil discovery procedures, in an on-the-record hearing of which a transcript was prepared. The trial judge’s decision was in writing, made findings of fact and drew conclusions of law. The decision resulted from an application of applicable law solely to the facts of record. Respondent’s procedural due process rights were lavishly protected.” In re Marriage of Blaisdell, 492 NE 2d 622 – Ill: Appellate Court, 1st Dist. 1986

The trial or hearing process does not need to be elaborate and perfect every time. A hearing or trial can be flawed but fair.

The judge can even arrive at the wrong conclusion without creating a due process claim…so long as the process was fair.

“Due process is not abridged where a [judge] misconstrues the law or otherwise commits an error for which its judgment should be reversed.” Reichert v. COURT OF CLAIMS OF STATE, 786 NE 2d 174 – Ill: Supreme Court 2003

A procedural due process violation has zero focus on the result (even if grossly unfair), the focus is on whether the process was justified.

“”Procedural due process is meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty[, ] or property.” The Vill. of Downers Grove v. Vill. Square III Condo. Ass’n, No. 2-21-0098, 22 (Ill. App. Ct. 2022)

A “bad” judge is, likewise, not a basis for a procedural due process claim.

“Due process guarantees the right to an impartial tribunal, but it does not guarantee the right to a particular judge.” Kaufman, Litwin and Feinstein v. Edgar, 704 NE 2d 756 – Ill: Appellate Court, 1st Dist., 2nd Div. 1998

Oddly, even a lengthy delay is not a procedural due process issue.

A “delay in the proceedings [does] not violate plaintiff’s constitutional due process right” SW v. DCFS, 658 NE 2d 1301 – Ill: Appellate Court, 1st Dist., 3rd Div. 1995

Sometimes, evidence isn’t even necessary for a fair hearing or trial.

“A failure to receive evidence does not constitute a denial of due process” In re Marriage of Varco, 158 Ill. App. 3d 578, 580 (1987).

But, if there is evidence, a judge can only consider the evidence before them.

“A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence[,] constitutes a denial of due process of law.” People v. Wallenberg, 24 Ill. 2d 350 (1962)

“[A] trial judge in [her] deliberations is limited to the record made before [her] at trial, and reliance on personal knowledge of disputed events denies the parties due process of law” IN RE MARRIAGE OF BALDRIDGE AND BALDRIDGE, Ill: Appellate Court, 2nd Dist. 2021

This is where procedural due process claims happen in an Illinois divorce court. Often, a matter will not even be set for a hearing and a judge will say “Yeah, I get it” and then make a ruling based on what can only be suppositions…because insufficient evidence was heard.

To invoke your procedural due process rights, you have to insist on being heard in full before the judge issues their final ruling.

To insist on being heard, you need to request a hearing on the issue with a set amount of time. On that hearing date, you should bring a court reporter so that a transcript will be available if the judge misinterprets the evidence you’re presenting.

The judge should accommodate you. If the judge does not accommodate you, file a motion asking for a full hearing and reconsideration of the judge’s order based on due process and evidence that wasn’t originally presented.

While invoking the U.S. Constitution in a divorce court may come off as hyperbolic and extreme, it is perfectly acceptable to ask that you get your day in court. After all…that’s what we’re all here for.

If you’d like to ensure you get your day in court…and that the day will be fair, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

Share Article on


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.

More about This Topic

Relevant Articles

Call Now Button