When a divorce is filed in Illinois…that divorce is filed somewhere.
The legal location of a divorce is called the venue.
Venue is “the proper or possible place for a lawsuit to proceed, usually because the place has some connection either with the the events that gave rise to the lawsuit or the plaintiff or defendant.” Black’s Law Dictionary (11th ed. 2019)
The final decisions regarding a divorce will be made in a specific venue.
“Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)(note: this is the only time the Illinois Marriage and Dissolution of Marriage Act refers to the parties by the antiquated and adversarial terms “plaintiff or defendant. In the rest of the Act the parties are “Petitioners or Respondents”)
An Illinois divorce must be filed with the circuit clerk of the county where either the Petitioner (the person who files the divorce first) lives or where the Respondent (the other party to the marriage and future divorce) lives.
Forum Non Conveniens Between Different Illinois Counties
There can be a great deal of gamesmanship when the two parties do not live in the same Illinois county.
The practice of family law varies greatly county to county in Illinois. Some counties lean strongly into the rules (I, obviously, love those counties) while other counties become more personality based (thankfully, my personality is that of a 18 year veteran in the Cook County Domestic Relations division).
The experienced Illinois divorce attorney will file a divorce in the county which is likely to benefit his or her client.
When the Respondent discovers that the divorce is filed in a county they do not live in or whose procedure could provoke an adverse outcome, the Respondent may object to the venue by citing the doctrine of forum non conveniens.
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)
In Illinois, “forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice…This doctrine allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)(quotations omitted)
For the most part, whichever party filed first will get to keep their divorce case in that county/venue.
“’In most instances, the plaintiff’s choice of forum will prevail, provided venue is proper and the inconvenience factors attached to such forum do not greatly outweigh the plaintiff’s substantial right to try the case in the chosen forum.’ ” First American Bank v. Guerine, 198 Ill. 2d 511, 520 (2002) (quoting Peile v. Skelgas, Inc., 163 Ill. 2d 323, 335-36 (1994))
The burden of proving that the forum is inconvenient rests on the party trying to change the venue.
“The burden is on the party asking for the dismissal to show that the relevant factors strongly favor transfer.” Koss Corp. v. Sachdeva, 975 NE 2d 236 – Ill: Appellate Court, 1st Dist., 6th Div. 2012
There are “private and public interest factors to be considered in applying the doctrine of forum non conveniens.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)(quotations omitted)
The private interest test as to whether a court should dismiss the current county’s jurisdiction over an Illinois divorce case is as follows: The current court should consider “(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)
When considering a forum non conveniens claim “no single factor is controlling.” Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 274 (2011)
Let us work through each of the private interest factors.
1. The convenience of the parties.
“[T]he [respondent] must show that the plaintiff’s chosen forum is inconvenient to the defendant.” (Emphasis added.) Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006); Vivas v. Boeing Co., 392 Ill. App. 3d 644, 657 (2009)
You cannot argue that the venue is inconvenient to the petitioner…they chose to file it in that county. The Petitioner has to live with that choice.
“[O]ne party cannot argue the other party’s convenience.” Ruch v. Padgett, 2015 IL App (1st) 142972, ¶ 40.
2. The relative ease of access to sources of testimonial, documentary, and real evidence
In a divorce case, testimonial evidence of potential witnsesses and where those witnesses live weigh heavily. The is especially relevant when there are children whose custody is subject to the divorce. In fact, a divorce with children must proceed where the children live.
“A proceeding for the allocation of parental responsibilities is commenced in the county where the child resides.” 750 ILCS 46/604(b)
In the year 2023, all documentary evidence conceivably relevant in a divorce would be electronic rendering no inconvenience to any location.
Likewise, real evidence (bringing an object into the court room for inspection) is likewise unlikely and, therefore, not a strong factor. The possible exception may be the valuation of immovable items, like real estate, causing the valuator to travel unnecessarily.
3. All other practical problems that make trial of a case easy, expeditious, and inexpensive
Do not get too creative while coming up with “other practical problems” which necessitate a transfer.
Most venues are not too far from each other. “Cook County and Du Page County are adjacent: the proximity, and the many roads and trains between, reduce any practical problems.” Meier v. Ryan 2023 IL App (1st) 211674
Likewise, do not claim that a local divorce case needs local attorneys.
“[T]he location of the parties’ attorneys is accorded little weight in determining a forum non conveniens motion.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 450 (2006)
These private tests to determine the validity of a forum non conveniens claim are a really a common sense “totality of the circumstances” test.
“A defendant seeking transfer is not required to show that the plaintiff’s choice of forum is inconvenient; rather, transfer is allowed where defendant’s choice is the substantially more appropriate forum.” Czarnecki v. Uno-Ven Co., 339 Ill.App.3d 504, 508, 274 Ill.Dec. 368, 791 N.E.2d 164 (2003)
“If, after considering the totality of the circumstances, defendant proves that the balance of circumstances strongly favors transfer, its motion should be granted.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011
In addition to the private 3-prong test is a public interests test with the following factors
“(1) the interest in deciding controversies locally; (2) the unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation; and (3) the administrative difficulties presented by adding litigation to already congested court dockets.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443-444 (2006)
Let us work through each of the public factors
- The interest in deciding controversies locally
Divorces should occur in the county that the marriage largely passed its time in.
“In domestic relations cases where the marriage occurred in the same county that the marital home was located and the children resided, there is a strong tie to that county.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011
2. The unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation
Illinois divorces do not have juries. “There shall be no trial by jury under th[e Illinois Marriage And Dissolution of Marriage Act].” 750 ILCS 5/103.
Furthermore, 80% of Illinois residents live in the Chicagoland area. A drive is not an unfair trial expense. “[T]he unfairness of imposing trial expense is really not a consideration when the two county court locations are only 32 miles apart.” Shirley v. Kumar, 404 Ill.App.3d 106, 112, 343 Ill.Dec. 630, 935 N.E.2d 638 (2010).
It is questionable “whether any relatively close forum could be considered to be inconvenient on an absolute scale given that we live in an age of automobiles, well-paved roads, and commuter rail service.” Evans v. MD Con, Inc., 275 Ill. App. 3d 292, 298 (1995); see Evans v. Patel, 2020 IL App (1st) 200528, ¶¶ 21, 60
3. The administrative difficulties presented by adding litigation to already congested court dockets
Usually, “court congestion is a relatively insignificant factor, especially where the record does not show the other forum would resolve the case more quickly” Berbig v. Sears Roebuck & Co., 378 Ill. App.3d 185, 189, 317 Ill.Dec. 721, 882 N.E.2d 601 (2007)
As of March, 2023, the publication of this article, Cook County’s domestic relations court system is extremely overburdened. Judges often give trial dates in 2024. A Cook County judge may find this factor extremely compelling. “When deciding forum non conveniens issues, the trial court is in the better position to assess the burdens on its own docket.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 302 (2006)
There is, however, a central database of congested court dockets in Illinois.
“[T]he annual report of the Administrative Office of the Illinois Courts [is] a proper source of reference in assessing court congestion. Washington v. Illinois Power Co., 144 Ill. 2d 395, 403 (1991)
At the end of the day, courts are about power. People with power, judges, can be loath to give up that power. Once a case is in a judge’s jurisdiction, that judge will be inclined to keep that case…and they have plenty of case law to allow them to do so.
“Before weighing the relevant factors, a court must first decide how much deference to give to a plaintiff’s choice of forum.” Vivas v. Boeing Co., 392 Ill. App. 3d 644, 657 (2009)
“[T]he battle over forum begins with the plaintiff’s choice already in the lead.” First American Bank v. Guerine, 198 Ill. 2d 511, 521 (2002)
It is “assumed on a forum non conveniens motion that the plaintiff’s chosen forum is a proper venue for the action…Plaintiff’s choice of forum is entitled to substantial deference.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)
Only when the petitioner has chosen a venue different from his home does a court seriously weigh the appropriateness of the forum.
When neither the petitioner’s residence is not in the chosen forum, the petitioner’s choice is “entitled to somewhat less deference…the deference to be accorded to a plaintiff regarding his choice of forum is less when the plaintiff chooses a forum other than where he resides…nonetheless the deference to be accorded is only less, as opposed to none.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006) (quotations omitted)
In a divorce, the only other option for venue is the Respondent’s home…and how can the respondent argue with that venue?
In the end, forum non conveniens is a flexible concept that is not controlled by any single factor. “If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.’ ” Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 227 (1987) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-50 (1981))
Forum Non Conveniens Claims When You Live Outside Of Illinois
“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).
Usually, a divorce occurring in Illinois that should occur in another state has a bunch of better jurisdictional arguments than forum non conveniens.
The Illinois “Code Of Civil Procedure” has much better arguments to move your divorce case out of Illinois than the forum non conveniens claim outlined above in this article.
“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)
If an Illinois divorce cannot be dismissed via 735 ILCS 5/2-209, the two competing states laws must be compared. If there is no difference in the laws between the two forums, Illinois is a sufficiently adequate venue.
“[C]ourts should not engage in a choice-of-law analysis unless a difference in law will make a difference in outcome” RS Invs. Ltd. v. RSM U.S., LLP, 430 Ill. Dec. 188, 198 (Ill. App. Ct. 2019)
“In the absence of a conflict in the relevant laws of the two states, the law of the forum state applies. That means that if a case is brought in Illinois, then Illinois law applies.” Gleim v. Roberts, 395 Ill. App. 3d 638, 641 (Ill. App. Ct. 2009)
If there is a sufficient difference in laws, then the court must pick which state’s laws to enforce.
“[I]n the absence of a local statute on choice of law, a court should consider, among other things, the relative interests of those states in the determination of the particular issue, the protection of justified expectations, the basic policies underlying the particular field of law, and certainty, predictability and uniformity of result.” In re Marriage of Adams, 551 NE 2d 635 – Ill: Supreme Court 1990
Forum Non Conveniens Claims When You Have Children
The state that will hear a child custody matter is determined by a statute 49 states share called the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) 750 ILCS 36.
The UCCJEA initially determines the forum of the child custody matter based on where the children were living when the case was first filed.
“[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.” 750 ILCS 36/201(a).
Section 102(7) of UCCJEA defines “home state” as “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.” 750 ILCS 36/102(7).
Additionally, “commencement” is defined as “the filing of the first pleading in a proceeding.” 750 ILCS 36/102(5)
Once the home state is established under the UCCJEA, a parent can request that the venue be moved for forum non conveniens.
“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. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.” 750 ILCS 36/207(a)
However, the forum non conveniens analysis for a multi-state custody matter must follow the UCCJEA’s prescribed analysis.
“Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this State; – 13 – (3) the distance between the court in this State and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation.” 750 ILCS 36/207(b)
Beyond these factors is the overall standard of the best interests of the child. “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
If you do not like the court where your Illinois divorce is taking place, you had better file a motion for dismissal. If you live in another Illinois county use the doctrine of forum non conveniens. If you live in another state, dismiss the case under the Code of Civil Procedure. Either way, contact an experienced Illinois divorce attorney to make sure you best argue your case.