Responding to a motion 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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Responding To A Motion During An Illinois Divorce

Responding to a motion in an Illinois divorce

In the course of an Illinois divorce, one side will file something and the court will order “21 days to respond to the filing.” Thus, every bit of work that one side in an Illinois divorce does creates work for the opposing side and raises the fees and stress in a never-ending battle of attrition litigation.

It doesn’t necessarily have to be that way. Some types of legal filings don’t need to be answered at all. This can cut down on unnecessary work and even give you the element of surprise in that your defenses and arguments won’t be revealed to the other side in advance of hearing.

So, what must be responded to and what responses are optional in an Illinois divorce?

Pleadings Vs. Motions In An Illinois Divorce

Whether you must file a response to your opponent’s filing depends on what they filed.

There are two types of ‘prayers for relief’ in an Illinois divorce: pleadings and motions.

“A pleading…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)

A pleading is a “cause of action, counterclaim, defense, or reply.” 735 ILCS 5/2-603

The best example of a pleading in a divorce is the document that starts it all, the Petition For Dissolution Of Marriage.

Not much beyond a Petition For Dissolution of Marriage is a proper pleading in an Illinois divorce.

The Illinois Marriage and Dissolution of Marriage Act provides examples of what can be a pleading in an Illinois divorce.

“As used in this Section, “pleadings” includes any petition or motion filed in the dissolution of marriage case which, if independently filed, would constitute a separate cause of action, including, but not limited to, actions for declaratory judgment, injunctive relief, and orders of protection.” 750 ILCS 5/105(d)

If the petition can’t be “independently filed” it’s probably a motion not a pleading.

Pleadings Must Be Respondent To In An Illinois Divorce

The distinction between a pleading and a motion is important in an Illinois divorce because pleadings must be answered…or that pleading’s contents will be deemed automatically true by an Illinois divorce court.

“Every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates” 735 ILCS 5/2-610(a)

“Every allegation, except allegations of damages, not explicitly denied is admitted” 735 ILCS 5/2-610(b)

Responding To Motions In An Illinois Divorce Is Optional

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)

Almost everything that is filed before a Judgment of Dissolution of Marriage is finalized and entered is considered to be a motion for temporary relief.

Because they are not pleadings, temporary motions are “not subject to dismissal pursuant to [a motion to strike]” Engst v. Engst, 8 N.E.3d 613, 618 (Ill. App. Ct. 2014)

Confusingly, both pleadings and motions can be called “petitions.” In reality, the word “petition” has no real bearing on the true type of filing. What matters is the substance of the filing in determining whether the filing is a motion or a pleading.

“[I]n determining the nature of a pleading or a motion, Illinois courts are not bound by the title, and instead will examine the substance of the document.” FOURNIE v. BELLEVILLE CONCRETE CONTRACTING COMPANY, Ill: Appellate Court, 5th Dist. 2021

“[A] petition, which sought temporary relief in the pending dissolution proceeding, [is] a motion rather than a “pleading.”” In re Marriage of Engst, 8 NE 3d 613 – Ill: Appellate Court, 4th Dist. 2014

Motions don’t suffer from the same handicap that pleadings do. A motion does not have to answered or responded to in order to preserve an objection.

“[T]he failure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion but merely the right to file a response thereafter.” In re Marriage of Fahy, 567 NE 2d 552 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991

Cook County, Illinois has a local rule which provides for this waiver of a response.

“[F]ailure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion but merely the right to file a response thereafter. As such, it does not allow the entry of a default judgment on the motion due to such a failure.” Cook Co. Cir. Ct. R. 2.1(d)

Although Rule 2.1(d) applies to the law division, an Illinois appeals court could “imagine no reason why it should not also apply in the other divisions of the court.” In re Marriage of Fahy, 567 NE 2d 552 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991

Failing to file a response just means you can not file a response in the future without leave of court. You can still object and argue against the motion without filing a response.

“[F]ailure to file a response within the time allowed for that response served to waive its right to file that response, but not its objection to or right to contest the motion.” PARKWAY BANK AND TRUST CO. v. Meseljevic, 940 NE 2d 215 – Ill: Appellate Court, 1st Dist., 2nd Div. 2010

Even a motion with a sworn affidavit attached will not require a formal response in an Illinois divorce court.

“While, generally, well-alleged facts within an affidavit must be taken as true when not contradicted by counteraffidavit, that rule is typically applied, by virtue of Supreme Court Rule 191(a) (134 Ill.2d R. 191(a)), only to affidavits in proceedings under sections 2-1005, 2-619, and 2-301(b) of the Code of Civil Procedure (Ill.Rev.Stat. 1987, ch. 110, pars. 2-1005, 2-619, 2-301) and does not apply to affidavits filed in conjunction with all other types of civil proceedings.” In re Marriage of Dowd, 573 NE 2d 312 – Ill: Appellate Court, 2nd Dist. 1991

You do not have respond to the opposing party’s motions. If the judge that is hearing your motion is reading the motion and its response in advance of the hearing, it is probably a good idea to provide a written response to your opposition’s motion.

How To Respond To A Motion In An Illinois Divorce

You are not bound by the “Admit/Deny/Neither Admit Nor Deny” format of answering a pleading when you respond to a motion in an Illinois divorce.

You can respond to a motion any way that you would like. A narrative form, easy to read, memo would better communicate your position than some derivative list of responses to your opponent’s individual allegations. A memo response allows you to quote case law (like I do in these articles) and even attach the case law highlighted for further reference by the judge. Not surprisingly, this is usually more compelling reading than the actual motion that’s being replied to. More importantly, responding in narrative form and not admit/deny response signals to the judge that you understand this is a motion NOT a pleading.

Most human brains do not process communication as the substance of the communication. Most human brains simply view the communication as a signal that the communicator is more likely right than not.

Wearing a well-fitted suit is signaling. Pulling out a case file is signaling. Getting a law degree at a highly ranked law school is signaling.

Showing an Illinois divorce judge that you understand the distinction between a pleading and a motion is an excellent way to signal that you are probably right about your other arguments as well.

Signaling can “separate the pros from the cons/
The platinum from the bronze/
That butter-soft shit from that leather on the Fonz” Wallace, Christopher (AKA “Notorious B.I.G.”), Carter, Shawn (“Jay-Z”), “Brooklyn’s Finest”, Reasonable Doubt, 1996, Track 3.

Citations are very effective signaling 😉

What are you and your attorney signaling when you submit a filing or appear in court?

Contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.