Illinois has 102 counties. Each county has its own court system for resolving divorce and other family law matters. The county wherein a divorce litigant files for divorce will determine who will decide the terms of that divorce. Therefore, this first step of picking a county to file for divorce in Illinois, called “venue,” is one of the most crucial tactics in your Illinois divorce. So, which county do you file for divorce in Illinois?
First, Can I File For Divorce In Illinois?
The first requirement is to ensure that a divorce litigant is an Illinois resident for the purposes of filing a divorce. If either party lives 90 days in Illinois, residency is established to file an Illinois divorce.
“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 5/401(a)
Which County In Illinois Do I File For Divorce In?
The residency of the parties determines the venue of the divorce in 99% of all cases. This is because most people going through a divorce live in the same county.
“Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)
But how do you determine where a party to a divorce resides?
What county in Illinois are the parties a resident of?
An old Illinois appeals case establishes that residency for the purposes of divorce is determined by the intent of one of the parties to have a ‘permanent home.’
“As used in the Divorce Act, “residence” thus denotes “permanent abode.” It is the place one considers as “home.” Of paramount importance in determining whether a given place is or is not one’s residence is the intent of that person to live there as his permanent home.” Garrison v. Garrison, 246 NE 2d 9 – Ill: Appellate Court, 2nd Dist. 1969
How do you prove intent to reside in a particular county for the purposes of an Illinois divorce?
Typically, you take the parties testimony to determine their intent. A party might say, “I got a job in Dupage county so I moved there right away” or a party might say “I got an apartment in Chicago after my separation so I could date easier.” Then you find corroborative evidence that bolsters or denies that claim such as an offer letter from the new employer or a long-term lease.
Abandonment vs. Permanent Residency And Venue
When venue is an issue, the questions is always “do we use the venue of the old address or the new address to determine venue?”
To determine which address we must ask, “did the party abandon his old residence in favor of a new residence?”
To establish abandonment of the old county there must be an intent to establish a new permanent residency with almost no possibility of returning to the previous residency.
“[W]here a person leaves his residence and goes to another place, even if it be another [s]tate, with an intention to return to his former abode, or with only a conditional intention of acquiring a new residence, he does not lose his former residence so long as his intention remains conditional.” Pope v. Board of Election Commissioners, 370 Ill. 196, 201 (1938)
‘[A]n absence for months or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment” Kreitz v. Behrensmeyer, 125 Ill. 141, 195 (1888)
So, it’s not enough to have moved to establish residency, you must effectively and in your heart have abandoned the previous residence.
“[O]nce residency is established, the test is no longer physical presence but rather abandonment. Indeed, once a person has established residence, he or she can be physically absent from that residence for months or even years without having abandoned it.” Maksym v. BD. OF ELECTION COM’RS, 950 NE 2d 1051 – Ill: Supreme Court 2011
How Do I Move My Divorce To Another County In Illinois?
Just because your spouse filed in the county they lived in or you lived in doesn’t mean your divorce case will be stuck in that county.
If all the relevant issues to the divorce such as the children and the marital home are in Dupage County but your spouse files for divorce in Cook County County, you can still file a motion to move your divorce to the county closer to those issues.
A motion to dismiss or transfer a lawsuit is called a Motion For Forum Non Conveniens. “Forum Non Conveniens” is Latin for “inconvenient forum.”
In a Motion For Forum Non Conveniens for an Illinois divorce, a court will consider “[T]he convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020
Under these considerations wherever the children of the parties live will be the most convenient forum as any witness related to the children will undoubtable live or work in that county. Guardian Ad Litems, the attorneys for the children’s best interests, are usually chosen based on their office’s distance from the children and parents. Guardian Ad Litems have to interview the children, the parents and inspect the parents’ respective homes.
“A motion to dismiss or transfer the action under the doctrine of forum non conveniens must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer.” Il. Sup. Ct. R. 187(a)
If your county transfer is granted, the clerk of the circuit court of the first county will transfer everything to the new county. “The clerk of the court from which a transfer is granted to another circuit court in this State on the ground of forum non conveniens shall immediately certify and transmit to the clerk of the court to which the transfer is ordered the originals of all documents filed in the case together with copies of and all orders entered therein…The clerk of the court to which the transfer is ordered shall file the documents and transcript transmitted to him or her and docket the case, and the action shall proceed and be determined as if it had originated in that court. The costs attending a transfer shall be taxed by the clerk of the court from which the transfer is granted, and, together with the filing fee in the transferee court, shall be paid by the party or parties who applied for the transfer.” Il. Sup. Ct. R. 187(b)
How Do I Move My Divorce To Another State Outside Of Illinois?
First, you must file a divorce action in the state you wish for the divorce to proceed in. This will establish that you actually do have jurisdiction in the other state.
Then, in Illinois, you file a Motion To Dismiss On Grounds of Forum Non Conveniens.
Typically, both divorce judges from each state will get on the phone with each other to determine the appropriate venue. This is almost always determined by the question of what state do the children live in and how long have they lived there.
Every state in the union has signed onto the The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is an agreement between all states as to how states determine which state is the “home state” for children. The rule is: if nothing is filed to the contrary and the children have lived in a state for 6 or more months, that is the home state.
After the divorce judges confer, the divorce will then proceed in the children’s home state.
The parties may further try to bifurcate their divorce so that custody is resolved in the children’s home state while other, financial matters such as alimony and division of assets are resolved in the state where those assets and sources of income exist. This sounds interesting but I’ve never, personally, seen it done.
Transferring Your Divorce Case Within Cook County
Most of my divorce cases are within Cook County. Cook County has 6 different courthouses where divorces are litigated: The Daley Center, Skokie, Rolling Meadows, Maywood, Bridgeview and Markham.
Cook County Court Rules allow for an automatic transfer from any of the suburban courthouses to the Daley Center if that request is filed within 30 days of the Respondent’s answer.
“Domestic Relations Division actions may be transferred from suburban municipal district court locations to the Richard J. Daley Center as follows:
Removal of a pre-judgment case filed within a suburban municipal district shall occur by the sole action of the Respondent when the Respondent files an appearance, together with the District Transfer form” Cook County Court Rule 13.3(f)(i)
This is really done as a convenience to the divorce lawyers. Most divorce lawyers in Cook County have offices and the majority of our cases in Chicago.
I transfer all of my cases to the Daley Center because I don’t want to charge my clients for travel to suburban districts.
If you’d like to learn more about where the best place to file or transfer your divorce to, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce lawyer.