Married couples move apart over time. They often literally move away from each other and one spouse will file for divorce in a state that the other spouse doesn’t live in. This is inconvenient for the out-of-state spouse at best and in direct violation of the out-of-state spouse’s constitutional due process rights at worst.
So, what can an out-of-state spouse do when they are served with Illinois divorce papers?
How Does An Illinois Court Have Jurisdiction Over An Out-of-state Party
In order to file for divorce in Illinois just one of the spouses must live in Illinois.
“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 or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action” 750 ILCS 401(a)
After a divorce is filed in Illinois, the divorce papers must be served to other spouse.
“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)
A 30 day clock begins ticking where the spouse who received the divorce papers must file an appearance to let the Petitioner and the court know that they are aware of the divorce and wish to participate in the proceedings.
“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)
“Every defendant who is served with summons shall answer or otherwise appear on or before the return day of the summons” 735 ILCS 5/18-106
Failure to file an appearance may result in the Petitioner being allowed to ask the court for a default judgment against the Respondent.
“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)
Filing a general appearance in an Illinois divorce case submits you to the personal jurisdiction of the Illinois divorce court.
“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
Personal jurisdiction means that a court can make decisions about everything the Illinois statute empowers it to. A respondent to an Illinois divorce pleading that is found to have personal jurisdiction in the case will have decisions made regarding assets, debts, maintenance (formerly known as alimony), child support and child custody issues.
As an out-of-state respondent in an Illinois divorce, you may not want the court to have personal jurisdiction over you. Without personal jurisdiction, an Illinois divorce court will only have “in rem” jurisdiction.
“In rem” means “about the thing” in latin. An Illinois divorce court that only has “in rem” jurisdiction will only have jurisdiction against the marriage NOT the respondent. An in rem divorce court proceeding can deal with a limited number of matters like the divorce itself, custody of children and disposition of non-marital property.
Other important issues such as maintenance (formerly known as alimony), child support, and division of marital debts and assets cannot be addressed by an Illinois divorce court if there is only “in rem” jurisdiction and not personal jurisdiction over the respondent.
“A purely personal decree in a divorce suit awarding alimony against a non-resident defendant who [the court does not have personal jurisdiction over] is not binding upon him” Wilson v. Smart, 155 N.E.2d 288, 291 (I1. 1927).
How Do You Contest Personal Jurisdiction In An Illinois Divorce Court?
If you don’t live in Illinois, you may not be subject to the jurisdiction of any Illinois court.
“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the [state], he have certain minimum contacts with [the state]” International Shoe Co. v. Washington, 326 US 310 – Supreme Court 1945
The reasons that a person must have minimum contacts with a state in order to be dragged into court in that state is that the court recognizes that it is a huge hassle to defend a lawsuit from out of state. If you can’t adequately defend yourself, you are being denied your constitutional right to due process.
“An orderly and fair administration of the law throughout the nation requires protection against being compelled to answer claims brought in distant States with which the defendant has little or no association and in which he would be faced with an undue burden or disadvantage in making his defense. It must be remembered that lawsuits can be brought on frivolous demands or groundless claims as well as on legitimate ones, and that procedural rules must be designed and appraised in the light of what is fair and just to both sides in the dispute.” Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432,
I wonder if this will change in light of Zoom courtrooms?
If the only connection to Illinois that you have is that your spouse now lives there, you can file a motion objecting to personal jurisdiction.
“Prior to the filing of any other pleading or motion other than as set forth in subsection (a-6), a party may object to the court’s jurisdiction over the party’s person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process, by filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a motion to quash service of process.” 735 ILCS 5/2-301(a)
It is crucial that you file the motion objecting to personal jurisdiction before you file anything else. Otherwise, you waive the objection.
“A party filing any other pleading or motion prior to the filing of a motion objecting to the court’s jurisdiction over the party’s person as set forth in subsection (a) waives all objections to the court’s jurisdiction over the party’s person prospectively” 735 ILCS 5/2-301(a-6)
What Are Minimum Contacts With Illinois That Will Allow An Illinois Divorce Court To Impose Personal Jurisdiction On An Out-Of-State Spouse?
The Illinois spouse is going to want to finalize the divorce they started in Illinois. The Illinois spouse will seek some kind of connection between the respondent and Illinois. They will start by working through the statute.
“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)
There are a few divorce specific clauses in the statute.
If you ever “maintained a matrimonial domicile” in Illinois, you will be subject to personal jurisdiction in Illinois.
Likewise, if your child was possibly conceived in Illinois, you will be subject to personal jurisdiction in Illinois.
If you told your spouse “go move to Illinois,” you will be subject to personal jurisdiction in Illinois.
Even if the out-of-state spouse seems to meet one of these statutory categories, the alleged Illinois contact may still be deemed not significant enough.
“The fact that a defendant’s acts fall within the terms of the long arm statute does not necessarily mean the exercise of jurisdiction over him is proper. Rather, the exercise of jurisdiction must be consistent with due process. The quality and nature of the respondent’s acts must be such that it is reasonable and fair to require her to conduct her defense in the forum State.” In re Marriage of Brown, 154 Ill. App. 3d 179, 185 (Ill. App. Ct. 1987)(Citations Omitted)
Because of these strict requirements and the relative uncertainty that they will even apply, you can gain automatic Illinois personal jurisdiction by serving the out-of-state spouse in Illinois.
“A court may exercise jurisdiction in any action arising within or without this State against any person who…Is a natural person present within this State when served” 735 ILCS 5/2-209(b)
If an Illinois divorce judge is satisfied that one of these factors has been met, there is still the question of whether Federal Constitutional due process requirements have been met. An out-of-state litigant can argue that although they satisfied one of Illinois’ jurisdiction requirement, they still do not have minimum contacts with Illinois under the federal constitutional standard.
After jurisdiction “is found to proper under [the Illinois] long-arm statute, then [the court must determine] if jurisdiction is permissible under the due process clause.” R.W. Sawant & Co. vs. Allied Programs Corp. 489 N.E.2d 1360, 1364 (1984). “Due process is satisfied when the defendant’s contacts with the forum state make it reasonable for [the defendant] to anticipate being called to account in that jurisdiction.” E.A. Cox Co. vs. Road Savers Intern. Corp., 648 N. E.2d 271, 276 (ill. App. 1st 1995) (citing International Shoe vs. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 (1945)).
When the Court considers whether jurisdiction is proper under the federal due process clause, the Court must consider whether “(1) the nonresident had ‘minimum contacts’ with the forum state such that there was ‘fair warning’ that the nonresident defendant may be hauled into court there; (2) the action arose out of or related to the defendant’s contacts with the forum state; and (3) it is reasonable to require the defendant to litigate in the forum state.” Spartan Motors, Inc. vs. Lube Power, Inc. 786 N.E.2d 613, 617 (Ill. Dist. 1st 2003)
What Happens If There’s No Personal Jurisdiction In An Illinois Divorce?
If the out-of-state spouse successfully establishes that they do not have sufficient minimum contacts with the state of Illinois to be subject to personal jurisdiction, they will still get a divorce in Illinois if they proceed with the divorce.
Additionally, Illinois courts will have jurisdiction over custody matters regarding children based on the fact that the children live in Illinois.
“[A] court of this State has jurisdiction to make an initial child-custody determination only if…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
Rather than just accept a bifurcated divorce with no real division of assets or financial obligations by either party, the Illinois resident spouse is more likely to file for divorce in the state the out-of-state spouse lives in.
Because of this, it’s important to consider the risks and benefits of an Illinois divorce versus divorce in an another state before automatically contesting Illinois jurisdiction.
If you live in another state and just got Illinois divorce papers or your spouse lives outside of Illinois, you’re dealing with a lot of jurisdictional issues before you even get started on your divorce. I enjoy discussing these matters so feel free to contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.