Motion To Dismiss in an Illinois Divorce

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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Motion To Strike In An Illinois Divorce

Motion To Dismiss in an Illinois Divorce

Mirriam-Webster’s Dictionary defines “bullshit” as “nonsense; foolish insolent talk.” In an Illinois divorce, it is very likely that you’ll receive some document that is nonsense and full of foolish insolent talk. When you get this document, you will say “this is bullshit.”

Illinois civil procedure provides a remedy for such bullshit: the motion to strike. If the opposing side’s pleading is illegible, incomprehensible or vague, you can ask that the pleading be stricken via a motion to strike.

Documents Filed Within An Illinois Divorce Court Must Be Legible.

“All documents for filing and service shall be legibly written, typewritten, printed, or otherwise prepared. The clerk may reject any documents which do not conform to this rule.” Rule 131 – Form of Documents, Ill. Sup. Ct. R. 131

Just because the clerk didn’t reject the document, doesn’t mean you can’t object to the legibility. Even if your motion to strike is denied, it’s a good opportunity to call out the opposing party’s sloppiness (but there should be other issues as well or you may be wasting the judicial economy of the court).

Pleadings Filed Within An Illinois Divorce Court Must Be Understandable.

“In all actions, pleadings shall be as specified in…this Act” 735 ILCS 5/2-601

“All pleadings shall contain a plain and concise statement of the pleader’s cause of action, counterclaim, defense, or reply.” 735 ILCS 5/2-603(a)

There’s also a specific structure an Illinois pleading must comport with.

“Each separate cause of action upon which a separate recovery might be had shall be stated in a separate count or counterclaim, as the case may be and each count, counterclaim, defense or reply, shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation.” 735 ILCS 5/2-603(b)

This is why Illinois divorce documents look like a numbered list.

If a pleading does not comply with these rules, you can file a motion to strike.

“All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.” 735 ILCS 5/2-615(a)

“After rulings on motions [to strike], the court may enter appropriate orders either to permit or require pleading over or amending or to terminate the litigation in whole or in part.”735 ILCS 5/2-615(d)

The court won’t throw out a pleading unless it’s a real mess.

“Pleadings shall be liberally construed with a view to doing substantial justice between the parties.” 735 ILCS 5/2-603(c)

If one pleading is bad but it refers to a pleading that comports with the rules, that will make the bad pleading valid by reference.

If facts are adequately stated in one part of a pleading, or in any one pleading, they need not be repeated elsewhere in the pleading, or in the pleadings, and may be incorporated by reference elsewhere or in other pleadings.” Rule 134 – Incorporation of Pleadings by Reference, Ill. Sup. Ct. R. 134

Failure To Plead With Specificity In An Illinois Divorce

99% of the time, the problem with the pleading is that there are not enough facts alleged.  “Fact pleading, as opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are sufficient to bring his claim within the scope of a legally recognized cause of action.” Teter v. Clemens, 112 Ill. 2d 252, 256 (Ill. 1986)

“[T]he question presented by a section 2-615 motion is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted…Although a complaint is deficient when it fails to allege the facts necessary for recovery, the plaintiff is not required to set out evidence; only the ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts” Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348 (Ill. 2003)

An Illinois petition for dissolution of marriage is pretty hard to screw up. Not a lot is required to be pled.

“The complaint or petition for dissolution of marriage or legal separation shall be verified and shall minimally set forth:

“(1) the age, occupation and residence of each party and his length of residence in this State;

 (2) the date of the marriage and the place at which it was registered;

 (2.5) whether a petition for dissolution of marriage is pending in any other county or state;

 (3) that the jurisdictional requirements of subsection (a) of Section 401 have been met and that irreconcilable differences have caused the irretrievable breakdown of the marriage;

 (4) the names, ages and addresses of all living children of the marriage and whether a spouse is pregnant;

 (5) any arrangements as to support, allocation of parental responsibility of the children and maintenance of a spouse;

 (6) the relief sought.”

If one of those items is not pled, you can file a motion to strike under 750 ILCS 5/2-615.

How bad does a pleading have to be? A pleading has to be sufficiently uninformative.

“No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” 735 ILCS 5/2-612(b)

“[A] complaint can be considered sufficiently “bad” (that is, not a complaint) only where the opposing party is without any reasonable notice as to the facts or circumstances of the action advanced by the pleadings.” Gonzalez v. Thorek Hosp. & Med. Ctr., 143 Ill. 2d 28, 36 (1991)

Even the worst pleading will not be dismissed if you don’t object to the bad pleading in time.

“All defects in pleadings, either in form or substance, not objected to in the trial court are waived.” 735 ILCS 5/2-612(c)

Even if you do object in time, an Illinois divorce judge will probably give the pleader a chance to amend their pleading so it will comply with the rules and allow the case to proceed.

“If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings prepared.” 735 ILCS 5/2-612(a)

Motions For Temporary Relief And Specificity

Usually, the problem is not with the underlying petition for dissolution of marriage but with temporary motions that are simply too vague to understand.

Whether it’s a motion for exclusive possession of a marital home, temporary custody of a child or an animal or temporary support, a bare minimum of facts must be described before the motion will be heard by an Illinois divorce judge.

Most temporary motions are asking for a party to do something or refrain from doing something. Motions that ask a party to refrain from doing something are called “preliminary injunctions”

“Generally, a party seeking a preliminary injunction must demonstrate that it: (1) has a clearly ascertainable right that needs protection; (2) will suffer irreparable harm without the protection; (3) has no adequate remedy at law; and (4) is likely to succeed on the merits.” In re Marriage of Centioli, 781 NE 2d 611 – Ill: Appellate Court, 1st Dist., 4th Div. 2002

A motion for injunctive relief would need to plead all of these elements or be at risk of being dismissed (but actually denied as you’ll see later in the article)

A petition for rule to show cause and indirect civil contempt is particularly at risk of being sticken for a lack of specificity.

A petition for rule to show cause and indirect civil contempt require description of “[t]he existence of an order of the court and proof of willful disobedience of that order are essential to any finding of indirect contempt.” In re Marriage of Spent, 342 Ill. App. 3d 643, 653, 796 N.E.2d 191, 200 (2003)

Failure to properly describe what was ordered and specifically allege the instances of disobedience must be met with a motion to strike.

“The burden initially falls on the petitioner to establish, by a preponderance of the evidence, that the alleged contemnor has violated a court order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

Motions Can Not Be Stricken By A Motion To Strike

Motions to strike or dismiss only apply to pleadings. Some motions are not subject to motions to strike or dismiss…because they are not pleadings.

A motion is an application to the court for a ruling or an order in a pending case.  A pleading, in contrast, consists of a party’s formal allegations of his claims or defenses.” In re Marriage of Wolff, 355 Ill. App. 3d 403, 407 (Ill. App. Ct. 2005)

Most temporary motions are NOT pleadings. The temporary relief statute “is an all-inclusive provision which allows a party to move for any other appropriate temporary relief, such as temporary custody; exclusive possession of the marital residence; sequestration of assets; and temporary attorney fees.” In re Marriage of Meyer, 197 Ill. App. 3d 975, 978 (Ill. App. Ct. 1990)

Temporary motions are “not subject to dismissal pursuant to section 2–615 of the Code ” Engst v. Engst, 8 N.E.3d 613, 618 (Ill. App. Ct. 2014)

So, should you file motions to strike a motion if that motion is not properly descriptive?

Yes! Absolutely.

Your motion to strike a motion will be denied but it will also alert the court that you are being subject to trial by ambush because you don’t know all the allegations you should be defending yourself from. Remind the court that the only way to know otherwise would be to depose the source of the allegations which would be an extreme and, possibly, unnecessary expense.

Furthermore, it will hold the motion filer to a higher evidentiary standard. You can always object as to relevance because new allegations are being raised in testimony that were not included in the motion.

Pleadings must be good…but motions don’t have to be? This stuff is complicated and it definitely helps to know the difference between the two and why it matters. To learn more about motions to strike and how they could help your Illinois divorce case, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.