Posted on January 31, 2022

Motion For Summary Judgment In An Illinois Divorce

A divorce occurs when two people can no longer agree how to maintain their relationship. In the fog of this disagreement, it is often difficult to recognize that, on some issues, the parties do agree. Sometimes, the parties to a divorce will agree on an issue or a subject matter to such an extent that a hearing or trial is pointless…because the parties have already admitted they agree.

The wise Illinois family law practitioner will quickly recognize those agreements and eliminate those issues before the court with a Motion for Summary Judgment.

“If the court determines that there is no genuine issue of material fact as to one or more of the major issues in the case… Upon the trial of the case, the facts so specified shall be deemed established, and the trial shall be conducted accordingly” 735 ILCS 5/2-1005(d)

How does an Illinois divorce court determine if there are not issues of material fact in the case before the court? The court looks to the pleadings.

“[I]f the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

“If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is proper.” Williams v. Manchester, 888 NE 2d 1 – Ill: Supreme Court 2008

A simple Illinois divorce only has one pleading: the petition for dissolution of marriage. A petition for dissolution of marriage only has three elements that need to be pled: 1) the parties were married, 2) one party lived in Illinois for 90 days and 3) there are irreconcilable differences between the parties.

“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 or the making of the finding:
    Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401

If, for some reason, the petitioner does not allege one of those three elements, a motion for summary judgment may be filed (or a motion to strike). Except for the element being married, the petition for dissolution of marriage can simply be amended at a later date to reflect the appropriate residency or grounds for divorce…thus rendering a motion for summary judgment largely useless in an Illinois divorce’s context.

Everything else in a divorce is possibly contested.

An Illinois divorce court must have “considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” 750 ILCS 5/401

Any of these issues may be contested and are, therefore, immune to a motion for summary judgment.

A motion for summary judgment may be more appropriate in a divorce as a way of resolving motions which arise in the course of divorce litigation.

Motions may be pled where the parties agree as to the facts the motions are based upon and, therefore, the court can simply adopt those facts without further proofs.

Summary judgment is “[a] drastic means of disposing of litigation” Hanley v. City of Chicago, 795 N.E.2d 808, 812 (Ill. App. Ct. 2003)

“Although summary judgment is a drastic means of disposing of litigation, it is an appropriate measure in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Crum & Forster Managers Corp. v. Resolution Trust Corp., 620 NE 2d 1073 – Ill: Supreme Court 1993

“Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt. Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied.” Outboard Marine Corp. v. Liberty Mut. Ins. Co., 607 NE 2d 1204 – Ill: Supreme Court 1992

“[S]ummary judgment requires the responding party to come forward with the evidence that it has–it is the put up or shut up moment in a lawsuit.” Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380

Usually, facts alleged in motions aren’t so crystal clear. Because there is a controversy between the parties, the facts COULD be contested and, therefore, summary judgment is not appropriate.

“A triable issue precluding summary judgment exists where the material facts are disputed, or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts.” Adams v. Northern Illinois Gas Co., 809 NE 2d 1248 – Ill: Supreme Court 2004

An Illinois court is even supposed to bias itself against the party that filed the motion for summary judgment when deciding for whether to grant a motion for summary judgment

“Specifically, the court must consider the affidavits, depositions, admissions, exhibits, and pleadings on file and must construe them strictly against the movant and liberally in favor of the nonmoving party.” Espinoza v. ELGIN, JOLIET AND EAST. RY., 649 NE 2d 1323 – Ill: Supreme Court 1995

The only way a motion for summary judgment is going to be granted is if there is no possibility additional evidence or interpretation thereof could be presented to the Illinois court.

“If what is contained in the papers on file would constitute all of the evidence before a court and would be insufficient to go to a jury but would require a court to direct a verdict, summary judgment should be entered.” Pyne v. Witmer, 543 NE 2d 1304 – Ill: Supreme Court 1989

Previous evidence taken and ruled upon in an Illinois divorce case shall not serve as an undisputed fact which warrants a summary judgment.

When “[a] motion had reference to the proceedings in which evidence was taken and that evidence was conflicting, so that a question of fact, not law, was presented [and summary judgment is not appropriate]” Sidwell v. Sidwell, 328 NE 2d 595 – Ill: Appellate Court, 4th Dist. 1975

So, in effect, a summary judgment is an Illinois court is making a purely legal decision NOT based on evidence.

“Summary judgment is, therefore, proper only when the resolution of a case hinges on a question of law and the moving party’s right to judgment is clear and free from doubt.” In re Estate of Hoover, 615 NE 2d 736 – Ill: Supreme Court 1993

There is one exception where evidence may not be considered contested: when the party moving for summary judgment has already sworn to that evidence.

Summary judgment can be appropriate in a Illinois divorce case…when there was a previous divorce case. A divorce will often involve a party claiming a property belongs to their new love interest. That party cannot, later, divorce the new love interest and subsequently claim that the property the party previously disclaimed is now marital.

“[S]ummary judgment was properly granted on the basis of judicial estoppel because [a litigant’s] sworn testimony in his previous divorce action was totally inconsistent with his position in this case. Although applying judicial estoppel sometimes leads to harsh results, it is often necessary to protect the sanctity of the oath and to preserve the integrity of the courts and the judicial process.” Bidani v. Lewis, 675 NE 2d 647 – Ill: Appellate Court, 1st Dist., 3rd Div. 1996

Motions for summary judgment are rare in Illinois divorce cases…because they’re not really an appropriate way to resolve issues. A divorce is simply too contextual. Parenting time affects support. Support affects the division of marital assets. The division of marital assets can affect support and parenting time. It’s almost impossible to conceive of a completely agreed issue in the most disagreeable situation: divorce.

In lieu of a motion for summary judgment, most Illinois divorce litigants should pursue a motion for declaratory judgment if their goal is abbreviate litigation.

Still, if you’d like to get creative in your divorce proceedings, contact my Chicago, Illinois family law firm to discuss your divorce with an experienced Chicago divorce attorney.

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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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