Divorce Petition In 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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Petition For Dissolution Of Marriage In Illinois

Divorce Petition In Illinois

Divorce is daunting. The first step to the formal, legal process of divorce in Illinois is filing the Petition For Dissolution of Marriage. This document has numerous legal requirements and is your first impression to the court that will decide what happens in the next chapter of your life.

What Is A Petition For Dissolution Of Marriage

A petition for divorce in Illinois is no different than any other civil action in Illinois. “Actions for dissolution of marriage or legal separation shall be commenced as in other civil cases” 750 ILCS 5/411(a)

In Illinois, every action in court is started by filing a “complaint.”

“A complaint is the first or initiatory pleading on the part of the plaintiff in a civil action.”  Black’s Law Dictionary (10th ed. 2014)

“The first pleading by the plaintiff shall be designated a complaint.” 735 ILCS 5/2-602

A complaint for a divorce in Illinois is called a “Petition For Dissolution Of Marriage.”

What Is A Caption In An Illinois Divorce Case?

The first part of any Petition For Dissolution is the caption. “The caption of a pleading, deposition, or other paper connected with a case in court, is the heading or introductory clause which shows the names of the parties, name of the court, number of the case on the docket or calendar, etc.” Black’s Law Dictionary (10th ed. 2014)

“Every complaint or other paper document initiating any civil action or proceeding shall contain in the caption the words “at law,” “in chancery,” “in probate,” “small claim,” or other designation conforming to the organization of the circuit court into divisions.” Illinois Supreme Court Rule 132.

Each county will have their own rules as to the form of a complaint.  For example, in Cook County “Every complaint or other paper initiating any action or proceeding shall contain in the caption the words “IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS” and the name of the Department and Division or District of the Court in which the action is filed.” Cook County General Order 6.1(a)

A caption is best illustrated by example:

STATE OF ILLINOIS            )

                                                 )  SS.

COUNTY OF COOK              )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, DOMESTIC DIVISION

IN RE THE MARRIAGE OF                        )

                                                                          )

JOHN JOHNSON,                                         )

            Petitioner,                                          )

                                                                         )           No. 2020 D 000001

and                                                                  )          

                                                                         )

JILL JOHNSON,                                            )

            Respondent                                       )

What Is A Cause Of Action In An Illinois Divorce Case?

After the caption, you must include “a plain and concise statement of the pleader’s cause of action” 735 ILCS 5/2-603.

The cause of action is “the right to bring a suit” Black’s Law Dictionary (10th ed. 2014)

For a divorce in Illinois, your right to bring a suit is the statute that describes dissolution of marriage: 750 ILCS 5/401.

Of course, you’re probably asking for more than just a divorce. You’re probably also asking for child support, custody matters, division of assets and maintenance.  Your right to have the court resolve those matters exists in other statutes contained within the Illinois Marriage and Dissolution of Marriage Act.

To include those causes of action, you can simply write “et seq” after the actual divorce statute, 750 ILCS 5/401.  Et seq is an abbreviation for the Latin phrase et sequentes meaning “and the following.”

Even if you forget to write “et seq” you are still able to pursue all the issues in your divorce. “The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action” In re Marriage of Leopando, 449 NE 2d 137 – Ill: Supreme Court 1983

So, the first sentence after your caption should look like this:

“NOW COMES the Petitioner, JOHN JOHNSON, per his attorney, RUSSELL D. KNIGHT, pursuant to 750 ILCS 5/401 at seq., and complains of the Respondent, alleging that:”

The key word to this sentence is “alleging.”  There must now be a numbered list of allegations.

What Are The Allegations In An Illinois Petition For Dissolution Of Marriage?

The Petition for Dissolution of Marriage “[S]hall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation.” 735 ILCS 5/2-603(b)

At this point, you can write anything you want about your marriage.  Literally anything. You can write that your ex-spouse always burnt the toast.  But, you must include some bare minimum information per the statute.

“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;”

A petition for dissolution of marriage is a public document.  Despite the statute’s specific requirements, I don’t see any reason to include a person’s age, their job and especially their address on a public document. A Petition For Dissolution of Marriage in theory could be struck by the court if you didn’t include those required items…but I have never seen it happen. Furthermore, you could just ask the court for leave to amend your Petition to include those matters.

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

This is to establish that the parties are legitimately married.  The mere allegation is all that is required. You do not need to produce a marriage certificate or any other proof of marriage.

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

Even if there is another Petition For Dissolution Of Marriage Pending in another county, state or foreign country, if you meet the jurisdictional requirements you can still proceed with your divorce in Illinois.  You will run the risk of having your case dismissed if the other jurisdiction is found to be more appropriate. 

(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;”

Two things have to be listed to satisfy this requirement: 1) that one of the spouse’s lived in Illinois for the last 90 days OR 2) that one of the spouses lived in Illinois for 90 days before the court will eventually make it’s finding that the spouse’s differences are irreconcilable.

“[O]ne of the spouses was a resident of this State…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(a)

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

In this case, listing the age of a child is necessary because a child over 18 will not be under the jurisdiction of an Illinois divorce court.  Addresses, again, betray the privacy of the parties in my opinion.

The matter of whether is a spouse is pregnant or not can be alleged as speculation or simply stated as “unknown”

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

This is where you can get into the nitty gritty of your marriage and need for divorce. A divorce is not like a breach of contract or a personal injury.  A divorce is not the legal unpacking of a singular incident that can be approximately understood through a single legal filing. So, no one expects you to put your life story in the Petition For Dissolution Of Marriage.  But, a concise summary of the reasons you need child support, parenting time, division of assets and/or alimony is appropriate and effective.

(6) the relief sought.”

This is not really an allegation but is, rather, a whole separate section of an Illinois Petition For Dissolution of Marriage tucked under the allegations.

What Is The Relief Sought In An Illinois Petition For Dissolution Of Marriage?

The relief requested in an Illinois Petition For Dissolution Of Marriage is prefaced with the sentence.

“WHEREFORE, the Petitioner respectfully requests that:”

A new numbering should start with all of the matters that you hope that an Illinois divorce court will resolve for you. 

The relief requested should, at a minimum, include establishing or waiving child support, parenting time, division of debts and assets, and maintenance/alimony.

Additionally, if either party changed their name for the marriage, it should be requested that the party have leave to resume their former name

Finally, a catch-all request should be included in case something was forgotten: “For any further relief this Court deems just and equitable.”

What Can NOT Be Included In An Illinois Petition For Dissolution Of Marriage?

I, personally, believe that public documents should include the least amount of private information possible. The alternative is to seal the court file (which is a cumbersome process).

Illinois law does not provide many restrictions on what personal information can be included on court documents.

“In civil cases, personal identity information shall not be included in documents or exhibits filed with the court“ Illinois Supreme Court Rule 138(a)

While this Illinois Supreme Court Rule sounds broad, the rule is, in fact, extremely narrow.

“Personal identity information, for purposes of this rule, is defined as follows:

1) Social Security and individual taxpayer-identification numbers;

(2) driver’s license numbers;

(3) financial account numbers; and

(4) debit and credit card numbers.” Illinois Supreme Court Rule 138(b)

The Illinois Supreme Court then allows you to list numbers so long as you redact (black out) everything but the last four digits.

“A redacted filing of personal identity information for the public record is permissible and shall only include:

       (1) the last four digits of the Social Security or individual taxpayer-identification number;

      (2) the last four digits of the driver’s license number;

      (3) the last four digits of the financial account number; and

      (4) the last four digits of the debit and credit card number.” Illinois Supreme Court Rule 138(c)

Verifying A Petition For Dissolution Of Marriage In Illinois

The whole point of going to court for anything is to determine who is responsible for what. 

Not surprisingly, the Illinois Supreme Court Rules require signatures to assume responsibility for anything that is filed in an Illinois divorce case.

If you are being represented by an attorney in your Illinois divorce, “[e]very pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.” Illinois Supreme Court Rule 137(a)

An Illinois divorce attorney has a certain level of responsibility for his client’s allegations.

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ibid.

In the alternative, “[a] party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address” Ibid.

There is an additional signature requirement in a divorce called “verification.”

A “petition for dissolution of marriage…shall be verified” 750 ILCS 5/403

“Any pleading, although not required to be sworn to, may be verified by the oath of the party filing it or of any other person or persons having knowledge of the facts pleaded.” 735 ILCS 5/2-605

So, a Petition For Dissolution of Marriage must include a section where the petitioner swears an oath that the allegations contained therein are true.

The Petitions For Dissolution Of Marriage that my office prepares include a separate affidavit that functions as a verification. An example is below:

AFFIDAVIT AND VERIFICATION OF (CLIENT’S NAME)

            I, (Client’s name), the Petitioner herein, hereby certify under penalty of perjury pursuant to 735 ILCS 5/1-109 of the Code of Civil Procedure that I am the Petitioner in the above-captioned matter, which remains pending and undetermined. I certify that, to the best of my knowledge, all the statements in my Petition for Dissolution of Marriage stated herein are true and correct.

FURTHER AFFIANT SAYETH NAUGHT.

            Under penalties as provided by law pursuant to 735 ILCS 5/1-109, I certify that the statements set forth in this instrument are true and correct except as to matters therein stated to be on information and belief, and as to such matters, I certify that I verily believe the same to be true.

Dated: ______________________                           

_______________________________________

(Client’s Name)

This verification is important because your allegations can be used by either your spouse or yourself as proof of an admission later on in your divorce case. “Verified allegations do not constitute evidence except by way of admission.” 735 ILCS 5/2-605

So, make sure your Illinois Petition For Dissolution of Marriage is accurate. If you can’t be accurate, be appropriately vague.

What Happens To My Petition For Dissolution Of Marriage

An Illinois Petition For Dissolution Of Marriage is filed with the county court along with a Summons.

Both the Summons and the Petition For Dissolution of Marriage are served upon the other spouse or the other spouse waives service by filing their own appearance in the case.

The other spouse must then file a formal response to all of the allegations contained within your Petition For Dissolution of Marriage. In theory, this response helps narrow which allegations are actually in dispute between the two parties but divorces are usually more textured and require further steps to resolve the myriad of issues that a divorce presents.

Failure to file a response will result in a finding of default which should award you (within the court’s discretion) all of the relief that was requested in your Petition For Dissolution Of Marriage.

A slew of temporary motions can follow an Illinois Petition for Dissolution Of Marriage along with discovery requests, mediations, negotiations, proposed final settlements, pretrial and finally a trial or final prove-up hearing.

There are so many rules to follow in just the initial filing of your Illinois divorce…and first impressions matter.  If you’d like my help in preparing your Petition for Dissolution of Marriage, please contact my Chicago, Illinois family law office to speak with an experienced Chicago divorce lawyer.