You used to live somewhere other than Illinois. Maybe you still live outside of Illinois but you want to file for divorce in Illinois. How soon can you file for divorce in Illinois and take advantage of Illinois’ sometimes generous/sometimes onerous divorce laws?
You are supposed to wait 90 days before filing a divorce in Illinois after moving to Illinois.
Waiting 90 Days To File For Divorce In Illinois
If you our your spouse have lived in Illinois for 90 days, file for a divorce in Illinois without worry.
“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 and the residence…had been maintained for 90 days next preceding the commencement of the action” 750 ILCS 401(a)
Does this mean that if you filed for divorce before the 90 days residency had passed that you could never get divorced in Illinois? Obviously, that would be ridiculous.
Alternative to the 90 day residency requirement for finalizing a divorce, the statute reads that a divorce can be granted if “[the court makes] 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 401(a)
Your petition for divorce is supposed to specify how long you’ve lived in Illinois.
A petition for dissolution of marriage requires “that the jurisdictional requirements of subsection (a) of Section 401 have been met” 750 ILCS 5/403(a)(3)
You want to file for divorce in Illinois but you can’t wait…and you know your spouse will file a motion to strike your petition for dissolution of marriage once they’ve found out that you filed there…so they can file for divorce in their own state.
Do you just wait the 90 days, biting your nails nervously? Hoping your spouse doesn’t file for divorce in their state first?
Just Amend Your Petition For Dissolution After 90 Days Of Illinois Residency Have Passed
You could still file for divorce in Illinois and explain that you haven’t lived in Illinois for 90 days but that you plan to. The opposing counsel can file a motion to strike but it probably won’t be heard for 90 days. When you finally have lived in Illinois for 90 days you could ask for leave to file an amended petition for dissolution which would reset the clock.
“At any time before final judgment amendments may be allowed on just and reasonable terms… which may enable the plaintiff to sustain the claim for which it was intended” 735 ILCS 5/616(a)
Sounds like an Illinois court should allow an amendment to “sustain the claim for which it was intended.”
In addition to delaying the case and then asking for leave to amend or if you need temporary relief within the next 90 days, you could just claim that you had been living in Illinois in spirit if not in body…so long as you had lived in Illinois before.
Now That You Have Thought About it, You have Always Been An Illinois Resident
Illinois’ political shenanigans have allowed a very broad definition of “residence” that the returning yet divorcing Illinois “resident” should take advantage of.
In Illinois “to establish residency, two elements are required: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Second, once residency is established, the test is no longer physical presence but rather abandonment. Indeed, once a person has established residence, he or she can be physically absent from that residence for months or even years without having abandoned it.” Maksym v. BD. OF ELECTION COM’RS, 950 NE 2d 1051 – Ill: Supreme Court 2011
“[T]he shortest absence, if at the time intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while, on the other hand, an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment.” Kreitz v. Behrensmeyer, 125 Ill. 141, 195, 17 N.E. 232 (1888).
You may have just left Illinois for a while…but Illinois was always your home and you always intended to come back.
“Both the establishment and abandonment of a residence is largely a question of intent” Maksym v. BD. OF ELECTION COM’RS, 950 NE 2d 1051 – Ill: Supreme Court 2011
Your opponent may say, “Wait. The statute says 90 days. All these common law cases about residency being based on intent are about voting…and they’re from 100 years ago!”
Residency is residency for all purposes in Illinois per the Illinois Supreme Court as recently as 2011.
“In Illinois, the legal meaning of residence has been settled for well over 100 years, not only in the [voting law] but in virtually every other setting in which this court has construed a legal residency requirement.” Maksym v. BD. OF ELECTION COM’RS, 950 NE 2d 1051 – Ill: Supreme Court 2011
So, if you are back in Illinois after an absence and want to get a divorce immediately, simply quote the Blues Brothers: “Sweet home, Chicago.”
How To Argue Against A Premature Illinois Divorce Filing
If your spouse has filed for divorce in Illinois and you know they have not achieved a 90 day residency, you may file a motion to dismiss and use the below arguments.
Recall that appropriate jurisdiction must be set forth in the Petition for Dissolution of Marriage.
“The complaint or petition for dissolution of marriage … shall minimally set forth: … (3) that the jurisdictional requirements of subsection (a) of Section 401 have been met ….” 750 ILCS 5/403(a)
The 90 day residency in advance of “commencement of the action”, that is the filing of the Petition for Dissolution of Marriage is statutorily mandatory.
“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 and the residence…had been maintained for 90 days next preceding the commencement of the action” 750 ILCS 401(a)
“[C]ompliance with the residency requirements in sections 401(a) and 403 of the Act are necessary to
confer subject matter jurisdiction on the circuit court.” In re Marriage of Schoen 2026 IL App (1st) 251193-U
You cannot waive away the statute’s requirements for the convenience of the parties or even to achieve justice.
In McFarlin v. McFarlin, 384 Ill. 428 (1943), the Illinois Supreme Court addressed the “jurisdiction of the court” in a divorce action. Although the provision of the Act at issue in that case involved venue, the court specifically addressed the court’s subject matter jurisdiction and the residency requirement in the Act, holding that “[c]ourts of equity have no inherent power in cases of divorce. The jurisdiction of such courts to hear and determine divorce matters is conferred only by statute. While such courts may exercise their powers within the limits of the jurisdiction conferred by the statute, the jurisdiction depends upon the grant of the statute and not upon general equity powers.” Id. at 430-31 (citing Johnson v. Johnson, 381 Ill. 362 (1942); Smith v. Smith, 334 Ill. 370, 379-80 (1929)). The court referenced section 2 of the Act, a precursor to section 401(a), which made the residence of the plaintiff in Illinois for a specified period before the filing of the complaint a “jurisdictional prerequisite.” Id. at 430-31.
“The plaintiff’s residence in a divorce case is necessary to confer subject matter jurisdiction on the court.” In re Marriage of Passiales, 144 Ill. App. 3d 629, 634 (1986)
“Where a trial court is hearing matters relating to the dissolution of a marriage, it is not acting within the
unlimited jurisdiction conferred on it by the constitution but, rather, is limited to that granted in the [Illinois Marriage and Dissolution of Marriage Act] ; In re Marriage of Burkhart, 267 Ill. App. 3d 761, 764 (1994)
J.P. Morgan said “I don’t want a lawyer who tells me what I can’t do. I hire a lawyer to tell me how to do what I want to do!” If you can’t tell by now…I’m that kind of lawyer. To learn more about how you can do what you in your Illinois divorce, contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Illinois divorce lawyer.
