More about This Topic
How To Reopen A Divorce Case In Illinois
A marriage is when society recognizes the emotional bond a couple has and imbues mutual obligations on the couple so that they might better function as a unit. Divorce is the dissolution of those mutual obligations…but there’s usually still leftover obligations like child support, division of debts and assets, etc.
Marriage is entered into based on emotion (usually) and divorce is often the same. Because of the emotional causes of divorce, divorces are often abandoned and then restarted.
Because of outstanding issues and abandoned divorces, it often becomes necessary to reopen a divorce case in Illinois.
Reopening A Divorce Case In Illinois When The Divorce Is Not Yet Final
In the midst of a divorce, if neither party schedules anything with the court, the divorce case will be, effectively, suspended and abandoned.
But, every case will be called by the court within 6 months.
“All cases shall be called for status report no later than six (6) months after the case is filed. Failure of the petitioner to answer the status call shall result in a dismissal for want of prosecution.” Cook County Court Rule 13.4(h)
If the parties want more time to consider their options without dismissing the divorce, they can ask the court to put the on “the reconciliation calendar.” The reconciliation calendar only lasts for a year. After that, the case is dismissed.
“All cases on the reconciliation calendar shall be called for status within one year, and if the matter has been on the calendar for twelve (12) months it will be dismissed or returned to the active calendar. If the case has been on the reconciliation calendar for less than twelve (12) months on the status date, then the court may continue the case on the reconciliation calendar for a period not to exceed twelve (12) months. Failure of the petitioner to respond to the status call shall result in a dismissal for want of prosecution.” Cook County Court Rule 13.2(g)
So, to reopen a stalled or abandoned divorce case in Illinois only requires the filing and scheduling of something on the court calendar.
Doing nothing in an Illinois divorce leads to the court issuing a “dismissal for want of prosecution.” The court doesn’t even need to inform the litigants that it is dismissing the case.
“No notice of the entry of an order of dismissal for want of prosecution shall be necessary provided plaintiff has been notified in advance that the court is considering the entry of such an order, unless required by local rule.” 735 ILCS 5/1302
Once a divorce case in Illinois is dismissed, that divorce becomes difficult to reopen.
How To Reopen a Dismissed Divorce Case In Illinois
An order of dismissal is a final judgment. Final judgments can be undone for almost any reason…within 30 days.
“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/1301(e)
If you miss that 30 day window, you’re out of luck. The divorce case is dismissed and you have to prepare and file a fresh new petition for dissolution of marriage.
A divorce having a new filing date will be the same as the previous divorce action except for two factors: the length of maintenance and the available period to claim dissipation.
The duration of a maintenance (formerly known as alimony) award “shall be calculated by multiplying the length of the marriage at the time the action was commenced” 750 ILCS 5/504(b-1)(1)(B) with a schedule of accelerating multipliers.
The later the filing date of the divorce petition, the longer the maintenance period.
“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage;” 750 ILCS 503(d)(2)(iv)
How To Reopen An Illinois Divorce Case For Modification
Almost everything about a divorce decree is modifiable except for the issuance of the actual divorce judgment and the final division of assets and liabilities. Divorces in Illinois do not have a Statute of Limitations the way crimes and other civil actions do in Illinois
Maintenance (formerly known as alimony) can be modified if almost anything has changed between the parties incomes. “An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
Illinois divorce courts will examine “the increase or decrease in each party’s income since the prior judgment or order from which a review, modification, or termination is being sought” 750 ILCS 5/501(a-5)(7)
“[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 501(c)
Child support can similarly be modified if there has been a change of income for either parent.
Instead of proving “a substantial change of circumstances” for child support, there are thresholds of income change“upon a showing of an inconsistency of at least 20%… between the amount of the existing order and the amount of child support that results from application of the [Illinois child support] guidelines” 750 ILCS 5/510(a)(2)(A)
But, almost any reasonable change will be sufficient to modify a child support order. “When determining whether there is sufficient cause to modify, courts consider both the circumstances of the parents and the circumstances of the child” Fedun v. Kuczek, 508 NE 2d 531 – Ill: Appellate Court, 4th Dist. 1987
Reopening a divorce case to modify a parenting schedule has certain timing requirements.
“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date.” 750 ILCS 5/610.5(a)
Of course, there are exceptions to “don’t touch a parenting schedule for two years” rule. Parenting schedules can be modified within the two year window if “[T]he court permits [the change] to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)
Child endangerment is an extreme standard for changing a child’s schedule. The Illinois statute also allows for modification of a child’s parenting schedule for a mere change in circumstances with the change being in the best interests of the child. “Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)
How To Reopen An Illinois Divorce Case To Undo An Asset Or Debt Award
While everything else about a divorce is subject to constant re-examination, the final allocation of marital assets and debts is a final judgment.
The final divorce decree may include clauses by agreement which allow either party to claw back assets upon a finding of hidden assets. This is sometimes known as a “finders keepers” clause.
If the judgment has been entered more than 30 days ago, reopening a divorce requires the a motion alleging the following: (1) the existence of a meritorious defense; (2) due diligence in presenting this defense in the underlying litigation; and (3) due diligence in the filing of this section 2-1401 petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209, 221 (1986)
Additionally, there is only a two year window to file a motion to reopen based on these grounds. “[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment.” 735 ILCS 5/2-1401(a)
But, the only reason to vacate a divorce (or a portion of the divorce) and not simply modify the final orders is to reallocate marital assets and debts. The only basis for reallocated marital assets and debts is fraudulent disclosure of the marital assets or debts.
“Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years” 735 ILCS 5/2-1401(c)
So, fraud or concealment of marital assets or debts allow a divorced party to reopen a divorce at any time in the future.
The due diligence requirement in filing a petition to vacate means that the two year limit probably starts once the aggrieved spouse became aware of the fraudulent concealment.
Still, the court will be kind to any victim of fraud. “[T]he due diligence requirement may be relaxed if actual fraud or unconscionable conduct played a part in the trial court’s judgment.” Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 458, 736 N.E.2d 179, 191 (2000)
How To Reopen A Divorce Case In Illinois To Enforce Your Final Orders
If an ex-spouse is not following the divorce’s final orders, the other ex-spouse can ask the court to enforce the orders and hold the order violator in contempt of court.
To hold someone in contempt requires the filing of a Petition For Rule To Show Cause For Indirect Civil Contempt.
“Indirect Civil Contempt” is an action by someone bound by an order where they violate that order outside of the presence of the court. Therefore, the non-violator has to give the court some evidence of the violation in order to establish the contempt proceedings. Weglarz v. Bruck, 128 Ill. App. 3d 1, 8, 470 N.E.2d 21, 26 (1st Dist. 1984).
In Cook County, Illinois, there are very explicit rules regarding what is necessary to hold a person in contempt of court.
“(i) Initiation – All requests for Rule to Show Cause, Adjudication of Indirect Criminal Contempt or Indirect Civil Contempt must be in writing, must specifically identify the order or provision alleged to have been violated, and must be properly served on the responding party.” Cook County Rule 13.8(i)
The petition for contempt must explain and quote the exact portion of the order the ex-spouse violated and how, exactly, the order was violated. The petition for contempt must be verified with a signed affidavit stating the allegations to be true.
“(ii) Attachments – A copy of the Judgment or Order alleged to have been violated must either be attached to any petition or motion alleging a violation, or presented to the court. Cook County” Rule 13.8(ii)
The original order which the ex-spouse violated must be attached to a petition for contempt.
Then in court, a judge will decide if a prima facie showing of non-compliance has been made based on the documents alone. “Prima facie means “good enough on a first impression”.
“(iii) Issuance of Rule – Upon the presentation, pursuant to notice, of a verified petition, or sworn testimony in open court, seeking a finding of indirect civil contempt, which makes a prima facie showing of noncompliance, a judge may issue a Rule to Show Cause. The court may issue a rule notwithstanding the responding party’s right to file a written response.” Cook County Court Rule 13.8(iii)
(iv) Form of Order – When a judge issues a Rule to Show Cause, the form Order on Rule to Show Cause provided by the court shall be used. Cook County Court Rule 13.8(iv)
Issuance of a rule to show cause shifts the burden of proof. After the issuance of the rule, the alleged order violator must prove they did not willfully violate the order.
“The party failing to make the allowances ordered has the burden of proving that his failure to comply was not willful or contumacious” In re Marriage of Elies, 248 Ill. App. 3d 1052, 1058, 618 N.E.2d 934, 939 (1993)
Upon a finding of contempt, the order violator must comply with the order to the best of his or her ability or face the possibility of jail.
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party” 750 ILCS 508(b).
Service and Notice When Reopening A Divorce Case In Illinois
Unless the other party was defaulted, there will have been an appearance on file of either the party or the party’s lawyer.
When you file a motion which reopens an old case, the opposing party must receive notice of that motion. The notice can be to the party themselves or to their former attorney.
“If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.” Ill. S. Ct. R. 201(c)(1)
But, does the lawyer who last represented the other party still represent the party?
It depends on the county. In Will County, the local rule is specific.
“In a dissolution of marriage or legal separation case, the attorneys of record shall continue to be of record until thirty (30) days after the entry of a formal Judgment…Thereafter, notice of a post-decree petition to the attorney is not mandatory and notice to the party is mandatory. However, notice to the former attorney of record as a courtesy is suggested.” Will County Court Rule 8.15
In Cook County, there is no rule. The only thing written about an attorney NOT representing someone is “An attorney may not withdraw his appearance for a party except in accordance with the provisions of Illinois Supreme Court Rule 13(c)” Cook County Court Rule 1.4(b)
“An attorney may not withdraw his or her appearance for a party without leave of court and notice to all parties of record” Ill. S. Ct. R. 13(c)(2)
So, it looks like an attorney represents someone forever unless they formally withdraw.
Service on or notice to some attorney who represented someone years ago probably won’t be sufficient.
“[N]otice sent to the attorney who no longer represented plaintiff did not constitute adequate notice.” Siegel v. Siegel, 80 Ill. App. 3d 583, 588 (Ill. App. Ct. 1979)
“The attorney-client relationship terminates after the judgment of divorce is entered. ” In re Marriage of Ponsart, 118 Ill. App. 3d 664, 667-68 (Ill. App. Ct. 1983)
So, you’re going to have to give notice to the old attorney and if the old attorney says “I no longer represent that person” you’re going to have to give adequate notice to the person directly.
Reopening a divorce is “opening a can of worms.” It’s messy and unpleasant. If you’re considering reopening your divorce, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.