Posted on April 23, 2023

Removing An Illinois Divorce Case To Federal Court

Many people who interact with the Illinois family system hold it in very low regard. After a spate of bad facts, bad luck and probably bad representation, the unhappy Illinois family law litigant may wish to remove his case to a different court altogether.

Apart from the Illinois state courts, the only other court system available to an Illinois resident is the Federal courts. Can you remove an Illinois divorce case to federal court?

Illinois Courts Govern Illinois Divorce Law

In Illinois, divorce is governed by Illinois state law. Specifically, an Illinois divorce proceeding is dictated by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/), the Illinois Parentage Act of 2015 (750 ILCS 46/), the Illinois Code of Civil Procedure (735 ILCS 5/), and other Illinois state laws.

Illinois state laws get adjudicated by Illinois state courts. “[S]tate courts are the ultimate expositors of state law.” Mullaney v. Wilbur, 421 US 684 – Supreme Court 1975

Federal courts have superior jurisdiction and authority over similar matters that state courts might opine on. Martin v. Hunter’s Lessee, 14 U.S. 304 (1816)

However, federal courts cannot simply trump any state court decision. Federal courts have a limited jurisdiction which may only be exercised appropriately. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Federal Courts Have No Jurisdiction Over Divorce Matters

Federal courts never have any jurisdiction over a divorce.

“[F]ederal courts have no jurisdiction over suits for divorce or the allowance of alimony.” Ankenbrandt v. Richards, 504 US 689 – Supreme Court 1992

The “regulation of domestic relations [is] an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 US 393 – Supreme Court 1975

Federal courts have waived any jurisdiction over divorce matters since 1859. “We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce.” Barber v. Barber, 21 How. 582 (1859)

Federal courts can get involved in state matters when fundamental issues of justice are deemed at issue. If you cannot get justice in a state divorce court, you are allowed to remove the case to federal court under very particular circumstances.

“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” 28 U.S.C. § 1443

“Section 1443 (1) entitles the defendants to remove [state] prosecutions to the federal court only if they meet both requirements of that subsection. They must show both that the right upon which they rely is a “right under any law providing for . . . equal civil rights,” and that they are “denied or cannot enforce” that right in the courts of [their state].” Georgia v. Rachel, 384 US 780 – Supreme Court 1966

Proving that your federal rights will be denied in state court is an enormous undertaking. A litigant must “show that he will be denied or cannot enforce his rights in the state courts. [Then, it must be proven] that if in fact [litigant’s] rights have been violated, an appeal to the state appellate courts would be ineffective to vindicate those rights….the vindication of the defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted … that those rights will inevitably be denied” Ridinger v. Williams, Dist. Court, D. Delaware 2020 (citations omitted)

Even if a federal court could obtain jurisdiction over an Illinois divorce, the federal court could not alter or establishing a new interpretation of the Illinois statutes governing the Illinois divorce.

“Decisions of the Federal courts in construing statutes of this State are not binding on this court.” Kelsay v. Motorola, Inc., 384 NE 2d 353 – Ill: Supreme Court 1978

Constitutional Issues In An Illinois Divorce

Constitutional issues come up all the time in Illinois divorce court. However, removal to federal court cannot occur just because a divorce is dealing with issues relating to the U.S. Constitution. “State courts can and do consider constitutional arguments in custody cases.” EA v. Gardner, 929 F. 3d 922 – Court of Appeals, 7th Circuit 2019

Federal courts are not to second guess a state court’s constitutional decisions in ongoing divorce proceedings.

“[F]ederal courts are required…to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Tobey v. Chibucos, 890 F.3d 634, 651 (7th Cir. 2018)

More often than not, any constitutional matters a litigant asks to be addressed by a Federal court will already have been addressed by the state court. If that’s the case, the federal court will deem the matter precluded. “[W]e see no reason why [a litigant] should be entitled to reopen matters that the state court actually resolved or could have resolved.” Golden v. Helen Sigman & Associates, Ltd., 611 F. 3d 356 – Court of Appeals, 7th Circuit 2010

You cannot lose in state divorce court and then immediately rush off to federal court for a second bite at the apple. Federal courts will invoke the Rooker-Feldman doctrine which bars federal review of “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 US 280 – Supreme Court 2005

Supplemental Jurisdiction And Divorce In Federal Court

The clever federal practitioner may think that a possible way to allow a federal court to consider a divorce matter is to invoke supplemental jurisdiction. Federal courts will resolve state law issues if the matter is intertwined with legitimate federal issues by allowing for supplemental jurisdiction over the state matter.

Supplemental jurisdiction is a court’s “jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original jurisdiction.” Black’s Law Dictionary (11th ed. 2019)

This seemingly valid supplemental jurisdiction exception to the rule that divorce cases are not to be considered in federal court is rendered moot by federal statute. Federal law precludes supplemental jurisdiction from attaching to divorce matters. “[Supplemental jurisdiction shall not]  confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree.” 42 U. S. C. § 13981(e)(4)

Quit dreaming. Your divorce case is never going to federal court. You are stuck here in state court with the rest of us. What you probably need is competent counsel to resolve your issues in the state court where your divorce case started…and will inevitably end. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois 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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