Married couples drift apart. Some married couples literally drift oceans apart to the point where they are no longer in the same country. When the member of the couple that is an Illinois resident files for divorce, that person needs to serve their overseas spouse in order in order for the Illinois court to have complete jurisdiction over the case.
Serving someone overseas is not easy, however. In many countries, strangers can’t just knock on people’s doors to hand them papers. So, how do you serve an overseas spouse in an Illinois divorce?
Ask The Overseas Spouse To Accept Service
After a divorce is filed in Illinois, the divorce papers must be served upon the opposing party.
“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(b)
But, service is not always necessary. There are other ways to get personal jurisdiction over a spouse in an Illinois divorce: have the spouse file an appearance (a legal form that indicates that the spouse submits to Illinois’ jurisdiction).
“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.” In re Marriage of Verdung, 535 NE 2d 818 – Ill: Supreme Court 1989
Service is a big hassle that most parties who agree to be divorced simply agree to waive.
Most jurisdictions in the United States have the concept of “waiving service.”
That is, the Respondent (the person who didn’t file the divorce but is answering the filing) can say, “I don’t want to be embarrassed by being served. I accept service automatically because I want to get a divorce, too.”
In Illinois, no such “waiver of service” formally exists. Instead, the other party just files their own appearance and that functions as a waiver of service.
In fact, the Petitioner who filed the Petition For Dissolution of Marriage can file the Respondent’s appearance. The appearance has the respondent’s signature. So, it’s presumed valid.
The Respondent will still have to sign all the final documents such as the Judgment For Dissolution of Marriage, Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities. So, an appearance just means the opposing party is aware of the divorce and submits to the complete jurisdiction of the Illinois divorce court. An agreement on all of the terms of the divorce is secured by those other documents (which, in reality, are usually signed at the same time as the appearance)
Hire An Overseas Process Server
If your overseas spouse won’t sign and send back an appearance for your Illinois divorce, you’re going to have to serve them in order to have personal jurisdiction over them in the Illinois divorce case.
Illinois law requires that service be by a sheriff. “Process shall be served by a sheriff” 735 ILCS 5/2-202(a).
Well there are no Illinois county sheriffs in the country the foreign spouse is living in.
Luckily, the same law later says, “It is not necessary that service be made by a sheriff” 735 ILCS 5/2-202(a)
For non-sheriff served divorces Illinois law allows that “[t]he court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action.” 735 ILCS 5/2-202(a).
In Illinois, this appointed person would have to be someone licensed to serve notice for civil cases. In foreign countries, however, no one has those licenses. So, anyone can be appointed to serve a foreign Respondent in an Illinois divorce.
Most people who have a foreign husband or wife also have a relative or friend in the same country. Just appoint the relative or friend, have the relative or friend give the foreign spouse the paperwork and then fill out an affidavit of service which you will later file with the court.
If the foreign spouse objects to the service, your friend or relative can always be called upon in a quick Zoom hearing to testify to the nature of the service. Zoom has really changed everything in Illinois divorce cases.
If you don’t know anyone in your spouse’s country, I guess you’ll have to hire someone…but it doesn’t need to be an actual formal process server. Literally anyone can be appointed to do this.
What If The Foreign Spouse Doesn’t Answer The Divorce Papers?
“The defendant may make his or her appearance by filing a motion within the 30-day period, in which instance an answer or another appropriate motion shall be filed within the time the court directs in the order disposing of the motion. Ill. S. Ct. R. 181(a)
I have never seen a foreign spouse file their own appearance but I have seen a few recently served foreign spouses hire lawyers. The problem is that American lawyers are very expensive so very few foreign spouses hire an Illinois attorney to defend their divorce case. Admittedly, these foreign spouses have had nothing to do with their Illinois spouse for years. So, why bother?
“Judgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” 735 ILCS 5/2-1301(d)
If the foreign spouse is defaulted, the Illinois spouse can ask the Illinois divorce judge for anything within reason and in accordance with Illinois law: maintenance (formerly known as alimony), child support, division of marital assets and debts, parenting issues.
There are some issues which an Illinois judge may decline to rule on without the foreign spouse’s consent.
If the children live in a foreign country and have been living in a foreign country for an extended period of time, the court will likely point to the Hague treaty and say a Hague petition is necessary to adjudicate those cross-country parenting issues. Hague petitions require a whole other article (which I have not written yet).
Many Illinois divorce courts also pass on dividing foreign assets as the division may be legal yet impractical. By reserving ruling on the division of foreign assets in a defaulted divorce against a foreign spouse, the court is allowing the Illinois spouse some leverage while also encouraging the Illinois spouse to file a subsequent case in the foreign country which is better equipped to adjudicate and enforce such matters.
What If You Can’t Find Your Foreign Spouse?
If a spouse lives in a foreign country, it is not unreasonable to presume that the Petitioner is no longer in touch with them…or anyone else that knows them.
In such cases, you can still provide notice to a spouse via publication.
First, an affidavit must be filed verifying that the Petitioner does not know where the Respondent is and could not find out the foreign spouse’s location even if they tried.
[P]laintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending.” 735 ILCS 5/2-206
It is not enough to say, “my wife is in Paris somewhere so I couldn’t find her.” The petitioner must show that it was effectively impossible to find their spouse in order to get a default divorce. This is a tall order in the age of the internet. Who doesn’t have a Facebook or LinkedIn profile now?
“[I]n no case of default shall the court grant a dissolution of marriage or legal separation or declaration of invalidity of marriage, unless the judge is satisfied that all proper means have been taken to notify the respondent of the pendency of the suit. Whenever the judge is satisfied that the interests of the respondent require it, the court may order such additional notice as may be required.” 750 ILCS 5/405
If an Illinois divorce court does accept service by publication of a foreign spouse, the Illinois divorce court will only enforce matters directly related to the marriage NOT matters directly related to the Respondent. This is a tricky concept.
Service by publication allows for “In rem” jurisdiction. “In rem” means “about the thing.” When there is only “in rem” jurisdiction,” an Illinois divorce court will only have jurisdiction against the marriage itself NOT the Respondent in the divorce case. An in rem jurisdiction divorce can deal with the actual divorce, custody of children and classification of non-marital property. Wilson v. Smart, 155 N.E.2d 288, 291 (Il. 1927). Child support, maintenance (formerly known as alimnony) and division of marital assets must be reserved until the foreign spouse is personally served.
Most spouses who live in separate countries don’t have a lot of issues that an “in rem” jurisdiction can’t resolve.
What If The Foreign Spouse Contests An Illinois Divorce?
In the past, I have had very few cases where foreign spouses actively litigated an Illinois divorce case. Zoom is really changing all of this.
I don’t see why a foreign spouse cannot file their own appearance online, appear via Zoom in the Illinois divorce court and even demand an interpreter. They could even retain local counsel and have a very good argument that their relatively wealthy American spouse pay their attorney fees.
What If A Foreign Spouse Files For Divorce In Their Country?
This gets very tricky. The judges from two foreign countries will not have procedures beyond the Hague Convention to determine where the divorce case should proceed. The one thing the Illinois resident must do is file for divorce in Illinois in order to contest the divorce in the foreign country. The divorce in the foreign country presumably cannot be invalid unless there is a competing legal proceeding in Illinois. So, if you receive a foreign divorce filing, file something locally in Illinois immediately and figure out your options later.
We practice in Illinois but we speak a lot of languages and have extensive experience in foreign issues in divorce. If you’d like to learn more, contact our Chicago, Illinois family law office to schedule a free consultation with an experienced Chicago divorce attorney.