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Notice In An Illinois Divorce
Almost everything a litigant does in an Illinois divorce does requires that the other party be notified. There are no surprises in an Illinois divorce. The reason surprises are forbidden in an Illinois divorce is that litigation by surprise is contrary to the fundamental principle of Anglo-American law: due process.
“No state shall make or enforce any law…without due process of law” U.S. Const., amend. XIV
Due process is “law in its regular course of administration through courts of justice.” Black’s Law Dictionary (10th ed. 2014)
“At a minimum, due process requires that a deprivation of property cannot occur without providing notice and an opportunity for a hearing appropriate to the nature of the case.” In re Marriage of Beyer and Parkis, 753 NE 2d 1032 – Ill: Appellate Court, 1st Dist., 1st Div. 2001
Initial Service In An Illinois Divorce
The first notice that a party to a divorce will receive is the initial service of the divorce petition and its accompanying summons.
“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
The summons is a notification that the divorce is happening and the respondent who receives that notice must file their appearance if they wish to participate in the divorce proceedings.
“[T]he summons shall require each defendant to file his answer or otherwise file his appearance within 30 days after service” Ill. Sup. Ct. R. 101(d)
The actual, physical delivery of the initial divorce documents is done by a sheriff or special process server.
“Promptly upon issuance, summons (together with copies of the complaint as required by Rule 104) shall be placed for service with the sheriff or other officer or person authorized to serve process.” Ill. Sup. Ct. R. 102(a)
If a spouse’s location is unknown, service is allowed by publication.
“[P]laintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending.” 735 ILCS 5/2-206
The respondent in an Illinois divorce action can avoid the embarrassment of being formally served by filing their appearance.
“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)
After an appearance is filed, all notice of all subsequent motions can be received via email.
Notice Via Email In An Illinois Divorce
If a respondent in an Illinois divorce hires an attorney, that attorney will automatically be the person who receives all the notices in their Illinois divorce.
“If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.” Ill. Sup. Ct. R. 11(a)
That attorney must accept all notices via email.
“An attorney must include on the appearance and on all pleadings filed in court an e-mail address to which documents and notices will be served in conformance with Rule 131(d). A self-represented litigant who has an e-mail address must also include the e-mail address on the appearance and on all pleadings filed in court to which documents and notices will be served in conformance with Rule 13(d).” Ill. Sup. Ct. R. 11(b)
Documents will be considered served and properly noticed if they are attached to an email or a link to the document is included in the email.
“[D]ocuments shall be served electronically.(1) Electronic service may be made(i) Through an approved electronic filing service provider, (EFSP) or,(ii) to the e-mail address(es) identified by the party’s appearance in the matter. If service is made by e-mail, the documents may be transmitted via attachment or by providing a link within the body of the e-mail that will allow the party to download the document.” Ill. Sup. Ct. R. 11(c)
Emails will be considered properly delivered unless they bounce back.
“If a party serving a document via e-mail receives a rejection message or similar notification suggesting that transmission was not successful, the party serving the document shall make a good-faith effort to alert the intended recipient of a potential transmission problem and take reasonable steps to ensure actual service of the document.” Ill. Sup. Ct. R. 11(d)
Notice of Motion In An Illinois Divorce
When a divorce case is pending, either side can ask the court for something that will move the case forward or resolve a temporary issue. These requests are called “motions.” A motion “is an application to the court for a ruling or an order in a pending case.” In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993).
“The form and contents of motions, notices regarding the same, hearings on motions, and all other matters of procedure relative thereto, shall be according to rules.” 735 ILCS 5/2-620
“Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared” Ill. Sup. Ct. R. 104(b)
Formal service with a notice of motion is encouraged but if a party forgets or neglects to serve a document, a court will forgive the lack of service.
“For good cause shown on ex parte application, the court or any judge thereof may excuse the delivery or service of any complaint, pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish the document promptly and without charge to any party requesting it.” Ill. Sup. Ct. R. 104(c)
Notice of filings should accompany any filing with the courts. Notices of filing provide kind of index of what was filed and when it was filed. The statute refers to “mailing” but electronic filing will be sufficient under the post-COVID changes to the Illinois Supreme Court rules.
“In any post-judgment proceeding to enforce or modify…Notice of the filing of the petition shall be mailed to the clerk of the court wherein the judgment was entered and last modified in the same manner as notice is mailed when registering a foreign judgment. Summons shall be served as provided by law.” 750 ILCS 5/511(b)
The Illinois Marriage and Dissolution of Marriage Act reminds and requires divorce litigants that they must provide the opposing party with notice when they ask an Illinois divorce court to do anything.
“When a proceeding for allocation of parental responsibilities is commenced, the party commencing the action must, at least 30 days before any hearing on the petition, serve a written notice and a copy of the petition on the child’s parent, guardian, person currently allocated parental responsibilities.” 750 ILCS 5/601.2(c)
Notifications for child support motions will be deemed sufficient if the notice is merely mailed to child support obligor’s last known address.
“In an action to enforce an order for child support based on the obligor’s failure to make support payments as required by the order, notice of proceedings to hold the obligor in contempt for that failure may be served on the obligor by personal service or by regular mail addressed to the last known address of the obligor. The last known address of the obligor may be determined from records of the clerk of the court, from the Federal Case Registry of Child Support Orders, or by any other reasonable means.” 750 ILCS 5/505(a-5)
Some forms of notice have specific requirements in order to comply with the Illinois statute.
Any kind of move with children requires a specific notice of relocation.
“The notice must provide at least 60 days’ written notice before the relocation unless such notice is impracticable (in which case written notice shall be given at the earliest date practicable) or unless otherwise ordered by the court. At a minimum, the notice must set forth the following:
(1) the intended date of the parent’s relocation;
(2) the address of the parent’s intended new residence, if known and 3) the length of time the relocation will last, if the relocation is not for an indefinite or permanent period.” 750 ILCS 5/609.2
A parent who moves in with a sex offender is required to notify the other parent of their partner’s status.
“Notification of remarriage or residency with a sex offender. A parent who intends to marry or reside with a sex offender, and knows or should know that the person with whom he or she intends to marry or reside is a sex offender, shall provide reasonable notice to the other parent with whom he or she has a minor child prior to the marriage or the commencement of the residency.” 750 ILCS 5/609.5
When Is Notice Not Required In An Illinois Divorce?
If you don’t provide notice and go to court asking for relief, you are acting “ex parte”
Ex parte means “On one side only”
Ex parte communication with the court is only allowed in emergency and temporary situations where waiting for notice would cause an irreparable harm. For example, a request to use an account to pay a mortgage when foreclosure would result.
“The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” 750 ILCS 5/501(b)
“Notice not required – Emergency motions and motions which by law may be made ex parte may, in the discretion of the court, be heard without giving prior notice and without calling the motion for hearing. Emergency motions shall, so far as possible, be given precedence.” Cook County Court Rule 2.2(a)
Even if notice is not required, notice should still be attempted. Since electronic filing has been implemented, there is really no excuse to not cc an opposing party or opposing counsel on the email you send to the judge or the judge’s coordinator.
If you’re struggling with the myriad of rules that are required to properly prosecute an Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.