Every divorce case in Illinois has a caption. The caption identifies, what county and division the case is in, who the parties are to the divorce and what the case number is.
“The party commencing an action shall be called the plaintiff. The adverse party shall be called the defendant.” 735 ILCS 5/2-401(e)
The Illinois legislature decided people would feel better if they were called a “respondent” rather than a “defendant.”
A party to a divorce’s name will be public information that can be easily searched for on the Circuit Clerk of Court’s website or any other website that scrapes public information. Once someone has found a divorce litigant’s name, they can peruse the details of their divorce because the filings in an Illinois divorce are a matter of public record.
“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.” 750 ILCS 105/16(6)
An Illinois divorce case may be sealed to ensure the privacy of the parties…but the fact that the case existed will always be a public record. For especially sensitive divorces that deal with sensitive issues, there is an alternative way to maintain a divorce litigant’s privacy: using a pseudonym.
Fictitious Names In An Illinois Divorce
Illinois law allows any litigant to request to use a pseudonym like John Doe or Jane Doe.
“Upon application and for good cause shown the parties may appear under fictitious names.” 735 ILCS 5/2-401(e)
To request a pseudonym from a court, the underlying lawsuit must be filed under the fictitious name and a motion for permission to use the fictitious name must be filed immediately.
The default is supposed to be the use of real names. Pseudonyms are confusing at best and duplicitous at worst.
“[T]his court has recognized that a person may be named in legal proceedings by his or her generally known name.” Santiago v. EW Bliss Co., 973 NE 2d 858 – Ill: Supreme Court 2012
“The use of pseudonyms is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in courts.” AP v. MEE, 821 NE 2d 1238 – Ill: Appellate Court, 1st Dist., 6th Div. 2004
“We have criticized the overuse of pseudonyms in federal litigation, pointing out that the public has a right to know who is utilizing the federal courts that its tax dollars support.” Coe v. County of Cook, 162 F. 3d 491 – Court of Appeals, 7th Circuit 1998
The use of a pseudonym in an Illinois court requires some kind of exceptional circumstance.
“The privilege of suing or defending under pseudonyms should not be assumed or granted automatically even if an opposing party does not object. The use of pseudonyms is disfavored, and the judge has an independent duty [set forth in section 2-401(e)] to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in courts.” A.P. v. M.E.E., 354 Ill.App.3d 989, 1003, 290 Ill. Dec. 664, 821 N.E.2d 1238 (2004).
“The determination of whether a plaintiff’s particular circumstances are “exceptional” must be made by the court on a case-by-case basis.” Doe v. Northwestern Memorial Hosp., 19 NE 3d 178 – Ill: Appellate Court, 1st Dist., 5th Div. 2014
If a case has some kind of sexual detail, the need for privacy will likely be recognized. Virtually all marriages and divorces have some sexual aspect that may warrant the use of a pseudonym.
“Throughout this opinion, we use for plaintiffs’ actual names the pseudonyms under which these cases were filed. In response to our inquiry at oral argument on appeal, plaintiffs’ counsel said that anonymity was not necessary to protect plaintiffs because there had been no act of sexual penetration. Plaintiffs subsequently requested anonymity based upon a concern for [Pseudonym’s] present mental condition. We have opted to honor that request.” Doe v. Lutz, 281 Ill. App.3d at 630 n. 1.
“[R]eproductive health is unquestionably an extremely private and sensitive topic.” Doe v. Northwestern Memorial Hosp., 19 NE 3d 178 – Ill: Appellate Court, 1st Dist., 5th Div. 2014
But, the private issue must rise above mere embarrassment. There has to be an element of danger to one of the litigants if the issue becomes publicly known.
“Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger or physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some personal embarrassment is not enough.” Doe v. Frank, 951 F.2d at 324.
If one party requests a pseudonym, it follows that their spouse would also be granted a pseudonym to preserve the first party’s privacy. This isn’t always the case, however.
“[T]he fact that pseudonym status has been given to one party does not mean that the other party is entitled to identical treatment. The court must make its determination by weighing the request for anonymity of each party separately against the public interest in open access to courts.” Doe v. Diocese Corp., 43 Conn. Supp. at 162-63, 647
Using Initials For Children’s Names In Illinois Divorce Court Documents
Often children’s full names and birthdates are included in public court documents. The children don’t consent to their identities and personal information being disclosed in their parents’ divorce. Therefore, it may be wise to use the children’s initials, in lieu of their full names.
“[R]edacting the names of the adult and minor beneficiaries could serve to protect the minors’ privacy interests without resorting to the overly broad measure of sealing entire documents or concealing the identities of other adult parties.” AP v. MEE, 821 NE 2d 1238 – Ill: Appellate Court, 1st Dist., 6th Div. 2004
A Wrong Name In An Illinois Divorce
Litigants and the circuit clerk of courts make spelling mistakes. Often, those mistakes are with the names of the parties. A wrong name will not invalidate an Illinois divorce. Although, that was the rule almost a hundred years ago.
The old rule was that “a proceeding by or against a party by a mere fictitious name will be a nullity.” Ohio Millers Mutual Insurance v. Inter-Insurance Exchange of the Illinois Automobile Club, 367 Ill. 44, 54 (Ill. 1937)
Under current Illinois law, names don’t really matter so long as we can identify the person.
“[W]e cannot say that a cause of action is per se null and void if a person files a complaint using a name other than his or her “legal” name.” Santiago v. EW Bliss Co., 973 NE 2d 858 – Ill: Supreme Court 2012
“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” 735 ILCS 5/2-401