Moving a divorce case to Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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In Illinois, How Do I Enforce or Modify Divorce And Custody Orders From Another State?

Moving a divorce case to Illinois

Every divorce or custody order typically includes a line saying “pursuant to this state’s laws.”  People don’t live in one state forever. What happens when a party to a divorce or custody action moves and they need to enforce the terms of their divorce or custody agreement in Illinois? Does that party have to re-open their case back in the original state or can the whole case move to Illinois?

It is impractical for parties to always return to the state that granted their divorce or determined custody of the children if one party lives in Illinois and especially if the children live in Illinois.

In the case of a modification, how can a court possibly investigate the case’s new facts when the facts are miles away in Illinois?

In the case of enforcement, how can a court supervise the terms of the agreement when the terms will be carried out mostly or exclusively in Illinois?

Enforcing Money Issues In Illinois From A Divorce In Another State

The United States Constitution requires that each state observe and honor every other state’s laws and judgments.

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, sec. 1.

A divorce judgment from one state shall be enforceable in another state, especially as to future financial obligations.

In Illinois, an out-of-state divorce decree “is entitled to full faith and credit as to future payments.” Light v. Light, 147 NE 2d 34 – Ill: Supreme Court 1957

Any monetary issues such as division of assets, maintenance (formerly known as alimony), back child support can be enforced in Illinois by registering that obligation in an Illinois court through a Petition To Register A Foreign Judgment.

“”[F]oreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this State.” 735 ILCS 5/12-651

In order to register or enroll a foreign judgment in Illinois, “A copy of any foreign judgment authenticated in accordance with…the statutes of this State may be filed in the office of the circuit clerk for any county of this State.” 735 ILCS 5/12-652

Illinois statutes do not have a definition of what “authenticated” means in relation to a foreign judgment.  Whatever stamping or certification exists in the judgments original jurisdiction is usually held to be sufficient, in my experience.  An affidavit as to the authenticity of the judgment may be an extra step one could take.

Furthermore, a judgment from another state is probably always admissible in an Illinois court without further authentication via judicial notice. “A judicially noticed fact must be one not subject to reasonable dispute in that it is….capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” Illinois Rules of Evidence 201(a)

The party wishing to enforce a divorce judgment in Illinois must file the foreign judgment in an appropriate Illinois county (the county of the debtor’s residence or the debtor’s assets) and provide notice to the opposing party.

“At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the circuit clerk an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.” 750 ILCS 5/12-653(a)

The Circuit Clerk of Court then sends out notice as well. 

The other party has the opportunity to stay but not undo the enforcement of the foreign judgment if that foreign judgment is being appealed or contested in the judgment’s original state.

“If the judgment debtor shows the circuit court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated” 735 ILCS 5/12-654

Without the opposing party filing a Petition To Stay, the foreign judgment will automatically become an Illinois order.

“The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court for any county of this State.” 735 ILCS 5/12-652(a)

Collecting Child Support In Illinois Based On An Order From Another State

Out-of-state child support orders can be enforced in Illinois without a formal Petition To Register A Foreign Judgment.

“A foreign judgment or lien arising by operation of law, and resulting from an order requiring child support payments shall be entitled to full faith and credit in this State, shall be enforceable in the same manner as any judgment or lien of this State resulting from an order requiring child support payments and shall not be required to be filed with the office of the circuit clerk in any county of this State” (emphasis mine) 735 ILCS 5/12-602

Someone who is owed child support from an Illinois resident can merely hire a collections attorney to enforce the current out-of-state order, judgment or lien.  Collections attorneys usually have a different set of litigation tools to collect moneys owed than what family law attorneys are used to. 

Enforcing A Parenting Order From Another State

If you were divorced or obtained your child custody documents in another state you can enforce or modify your custody orders in Illinois if the children live in Illinois.

Illinois courts must enforce the parenting orders of other states.

“A court of this State shall recognize and enforce a child-custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this Act or the determination was made under factual circumstances meeting the jurisdictional standards of this Act and the determination has not been modified in accordance with this Act.” 750 ILCS 36/303

Every other state in the United States jurisdiction will be “in substantial conformity with this Act.”  Illinois only requires 90 days of Illinois residency to establish jurisdiction for a divorce and no time limit to establish parentage. 

Furthermore, the jurisdiction of any child related matter is determined by the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA).  This act was adopted by all the states except Massachusetts in 1997 in their own statutes for the sake of conformity and resolving intra-state child custody issues.

To enforce another state’s child custody order, one must first register the child custody order in Illinois. 

“A child-custody determination issued by a court of another state may be registered in this State, with or without a simultaneous request for enforcement, by sending to the circuit court in this State:

(1) a letter or other document requesting registration;

(2) two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and

(3) except as otherwise provided in Section 209, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child-custody determination sought to be registered.” 750 ILCS 36/305

These factors are usually all included in a Motion To Register A Foreign Judgment which will be filed in an Illinois circuit court with notice given to the other party. 

The other party is then given time to contest that the case be made enforceable in Illinois.

Finally, after a hearing, the court shall register the divorce and/or parenting orders as a foreign judgment.  The effect of this is to make the other state’s divorce or parenting documents Illinois orders. Orders which can be enforced or modified in Illinois.

If the other parent is not following the parenting agreement which is now registered in Illinois, you can file a Motion For Enforcement and Indirect Civil Contempt.

“Contempt Of Court” happens when someone defies the court’s rules and orders inside a court.  So, a judge sees the violation and can instantly order a punishment.

“Indirect Civil Contempt” is any action by a party to a court order violating that order while outside the presence of the court.  Therefore, the complaining party has to give the court a little bit of evidence of the violation as a first step. Then “the “accused contemnor must be given notice, a fair hearing and an opportunity to be heard.” Weglarz v. Bruck, 128 Ill. App. 3d 1, 8, 470 N.E.2d 21, 26 (1st Dist. 1984).

After a finding of contempt in an Illinois family law court, the violator must comply with the order and pay all attorney’s fees or possibly face jail time.

Modifying Another State’s Parenting Orders In Illinois.

“[A] court of this State may not modify a child-custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination” 750 ILCS 36/203

To determine If a state can make “an initial determination” as to custody “a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) 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

A court may consider and rule upon a child’s parenting time and custody issues if that court is the child’s “home state”

“”Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.”750 ILCS 36/102(7)

So, after a child has spent six months in Illinois, a parent can register and modify another state’s custody judgment in an Illinois court and under Illinois law.

Of course, there’s a lot of jurisdictional gray area in between day one of living in Illinois and month six of living in Illinois.  The UCCJEA covers almost every fathomable jurisdictional conflict scenario.

The practical reality is that the two judges from each competing jurisdiction get on the phone and resolve the jurisdiction matter between themselves.

“A court of this State may communicate with a court in another state concerning a proceeding arising under this Act.” 750 ILCS 36/110

Once you’ve established Illinois as the home state and the other state’s custody and parenting orders are registered in Illinois you can begin using Illinois statutes regarding modification.

Illinois requires a “substantial change of circumstance” in order to modify any parenting order.  Clearly, a move to Illinois is a substantial change in circumstance.

Next, an Illinois court can modify the newly registered foreign judgment based on the court’s determinations of what is in the child’s best interests.

Can Illinois Courts Lose Jurisdiction Of The Children If The Children Move Again?

Yes. The Illinois statutes as quoted all comply with the UCCJEA.  49 other states have the exact same statutes in form and effect.  If the children leave Illinois for more than 6 months, the jurisdiction can and should switch to that new state.

The exception is if the children move and the Illinois parent files anything objecting to that move in the Illinois court. Then, the jurisdiction of the child custody matters stays in Illinois.

“A court of this State shall continue to exercise exclusive jurisdiction and be considered the home state of a child if a parent moves with a child under subsection (h) of Section 609.2 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 36/202

So, if your kids are out of Illinois for more than a month or two, do yourself a favor and file something so that you can continue to have home court advantage in Illinois.

If you’ve moved to Illinois or your ex-spouse has moved to Illinois and you need to enforce or modify your divorce or parentage orders from another state, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer