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How To Contest Service In An Illinois Divorce Case
“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 point of serving a copy of the petition and summons is to let the other side know that a lawsuit is proceeding and what they must do to participate in the lawsuit.
“Serving a copy of a summons and complaint on a party-defendant is an essential part of the litigation process and allows a court to obtain personal jurisdiction over that defendant.” Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773, ¶ 18. “If a party is not properly served with summons, the trial court does not obtain personal jurisdiction over that party.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367 (2001)
This is important because “[w]here the trial court does not have personal jurisdiction over a party, any order against him is void” Department of Healthcare & Family Services ex rel. Hodges v. Delaney. 2021 IL App (1st) 201186
Petition To Vacate For Lack Of Service In Illinois
Unlike most Petitions To Vacate, there is no need to prove that you were diligent or had a meritorious defense if you are only trying to vacate the orders due to a lack of service.
“Petitions brought on voidness grounds need not be brought within the two-year time limitation. Further, the allegation that the judgment or order is void substitutes for and negates the need to allege a meritorious defense and due diligence.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
Failure to serve a party is failure to have personal jurisdiction over that party. Failure to have personal jurisdiction over that party means they are not subject to any court orders in that action.
“In order to have a valid judgment the court must have both jurisdiction over the subject matter of the litigation and jurisdiction over the parties. Personal jurisdiction may be acquired either by the party’s making a general appearance or by service of process as statutorily directed. A judgment rendered by a court which fails to acquire jurisdiction over the parties is void and may be attacked and vacated at any time, either directly or collaterally.” In re Marriage of Verdung, 126 Ill. 2d 542, 547 (Ill. 1989)(Citations Omitted)
Contesting service is a clean and easy way to vacate a judgment or order in an Illinois divorce…because so little is required of the objector besides saying “I never got the summons.”
What Constitutes Good Service In An Illinois Divorce?
There are two types of service in Illinois: personal service and substitute service.
Personal service is achieved “by leaving a copy of the summons with the defendant personally.” 735 ILCS 5/2-203(a)(1).
Substitute sercice is achieved “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” 735 ILCS 5/2-203(a)(2).
The sheriff or a special process server (whoever served the party) then files an Affidavit of Service to verify the return of service. The affidavit of service contains a brief description of who was served, what they looked like, what name they gave, the location of service, etc.
Claiming That The Service Was Not Sufficient In An Illinois Divorce
“[R]eturn [of service] is prima facie evidence of service which cannot be set aside upon the uncorroborated affidavit of the person served. It can only be set aside by clear and satisfactory evidence.” Nibco, Inc. v. Johnson, 98 Ill. 2d 166, 172 (1983)
To prove that the service wasn’t in accordance with the law’s requirements, the person who allegedly served the Respondent must be questioned as to the details of the service.
Denying personal service is difficult.
A simple claim that you weren’t served without corroborating evidence “offers nothing that approaches the kind of substantial and competent evidence necessary to impeach the return of service.” Charles Austin, LTD. v. A-1 Food Services, 2014 IL App (1st) 132384
To contest personal service you’re going to have to say, “I wasn’t in town that day” and then prove that you weren’t where the affidavit of service says you were.
To counter, the sheriff or special process server can simply testify that “I recognize you from when I served you.”
But, the sheriff or special process server can only testify to what they know or experienced.
“This rule applies, however, only to matters within the knowledge of the officer making the return, such as the facts that service was made, that it was made upon a person who gave his name as Joe Johnson in this case, and that service was made at a particular place.” Nibco, Inc. v. Johnson, 98 Ill. 2d 166, 172 (1983)
This becomes problematic in the case of substitute service which requires that service be achieved “by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there.” 735 ILCS 5/2-203(a)(2)
The sheriff or special process server does not personally know what the defendant’s usual place of abode is, who resides there or who his family is. The Respondent can simply deny any of those facts.
“This [sheriff or special process server’s] recital could be denied by the affidavit of the defendant, as it was. If the affidavit were not contradicted, or if it were unrebutted, that part of the affidavit attacking those recitals in the return which are beyond the personal knowledge of the officer would be taken as true.” Nibco, Inc., 98 Ill. 2d at 172-73.
A return of service based on substitute service “must show strict compliance with every requirement of the statute authorizing such substituted service, since the same presumption of validity that attaches to a return reciting personal service does not apply to substituted service.” State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 309 (1986).
How Do I Contest Service In An Illinois Divorce Case?
To participate in an Illinois divorce, one must first file an appearance to announce your participation to the court and all parties to the case.
The problem is that a general appearance then subjects the service contester to the personal jurisdiction of the court. Upon which…all orders become valid
“In order to have a valid judgment the court must have both jurisdiction over the subject matter of the litigation and jurisdiction over the parties. Personal jurisdiction may be acquired…by the party’s making a general appearance.” In re Marriage of Verdung, 535 NE 2d 818 – Ill: Supreme Court 1989
There is an exception which allows the service contester to file a special appearance for the sake of objecting to the service.
“Prior to the filing of any other pleading or motion…a party may object to the court’s jurisdiction over the party’s person” 735 ILCS 5/2-301(a)
Is It Worth Contesting Service In An Illinois Divorce?
The service objector can be served at any time during the course of his objection…thereby rendering the objection moot.
Objecting to service might give the service objector another bite at the apple to tell the court his or her side of the story and obtain a different final judgment. The objection, however, will not stop the clock.
Almost everything in Illinois family law is retroactive to the filing of the underlying petition for dissolution of marriage or petition for parentage.
In parentage cases (where the parties were not married) matters of child support can be considered retroactively to the birth of the child.
“There is no reason child support should not have been ordered retroactive to the date of birth of the child. Any other decision would encourage delay tactics in litigation and defeat the obvious intent of the legislature.” Carnes v. Dressen, 574 NE 2d 845 – Ill: Appellate Court, 4th Dist. 1991
Therefore, an objection to service should be considered a motion to vacate…which would restart the case from scratch. This may be worthwhile or it may not.