You cannot make an omelet without breaking an egg and you can’t get a final judgment for dissolution of marriage without proving to the court that the Respondent was personally served.
“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
To serve is “to present (a person) with a notice or process as required by law” Black’s Law Dictionary (11th ed. 2019).
The point of service is to bring a person under the personal jurisdiction of the court.
Personal jurisdiction is “A court’s power to bring a person int its adjudicative process; jurisdiction over a defendant’s personal rights, rather than merely over property interests.” Black’s Law Dictionary (11th ed. 2019).
“To enter a valid judgment, a court must have both jurisdiction over the subject matter and jurisdiction over the parties. A judgment entered by a court without jurisdiction over the parties is void and may be challenged at any time, either directly or collaterally….Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party’s voluntary submission to the court’s jurisdiction.” BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (citations omitted)
If you don’t have service…you don’t have a viable divorce case.
‘When a defendant has not been served with process as required by law, the court has no jurisdiction over that defendant and a… judgment entered against him or her is void.” JPMorgan Chase Bank, National Association v. Ivanov, 2014 IL App (1st) 133553
Service only happens if you follow the rules EXACTLY as they are written.
“[T]he service of copies of pleadings shall be according to rules.” 735 ILCS 5/2-201
“It is well settled that strict compliance with statutory requirements in effecting service is essential for the court to obtain personal jurisdiction over the defendant. ” Doe v. Logan, 2021 Ill. App. 191447, 6-7 (Ill. App. Ct. 2021)
In an Illinois divorce, personal service is achieved by physically giving the summons directly to the Respondent or leaving it at their home “usual place of abode.”
“Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode” 735 ILCS 5/2-203(a)
Alternatively, “If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2-203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process.” 735 ICLS 5/-203.1
Nowhere is email mentioned in regards to service according the Illinois Code Of Civil Procedure.
“[T]he relevant statutory provisions and supreme court rules do not authorize service of process by email.” IN RE ADOPTION OF MAE, 2022 IL App (5th) 210291 – Ill: Appellate Court, 5th Dist. 2022
The Illinois Code of Civil Procedure may stand still…but the world moves on. As of April 24, 2023 the Illinois Supreme Court now allows for service via email, social media or text message if properly motioned and given leave of court.
“(f) Service by Special Order of Court. Upon motion brought pursuant to Section 2-203 .1 of
the Illinois Code of Civil Procedure, the court may order service of summons and complaint to be
made in a manner consistent with due process and subject to provisions of this paragraph.
(1) If the court is satisfied that the defendant/respondent has access to and the ability to use
the necessary technology to receive and read the summons and documents electronically, the
following alternative methods of service or combination of methods of service may be ordered
by the court when granting a motion brought pursuant to Section 2-203 .1 of the Illinois Code
of Civil Procedure (735 ILCS 5/2-203.1).
(A) Service by social media. Service by social media shall be made by (i) sending a
direct message to the defendant/respondent on a social media platform on which the
defendant/respondent has an active profile; (ii) attaching a copy of the summons,
complaint/petition, and any other required documents to the direct message; and
(iii) stating in the body of the direct message: “Important information-You have been
sued. Read all of the documents attached to this message. To participate in the case, you
must follow the instructions listed in the attached summons. If you do not the court may
decide the case without hearing from you, and you could lose the case.”
(B) Service by e-mail. Service by e-mail shall be made by (i) sending an e-mail to the
defendant/respondent at his or her current e-mail address; (ii) attaching a copy of the
summons, complaint/petition, and any other required documents to the e-mail; (iii) stating
in the subject line of the e-mail message : “Important information-You are being sued”;
and (iv) stating in the body of the e-mail: “You have been sued. Read all of the documents
attached to this e-mail. To participate in the case, you must follow the instructions listed in
the attached summons. If you do not, the court may decide the case without hearing from
you. and you could lose the case.”
(C) Service by Text Message. Service by text message shall be made by (i) sending a
text message to the defendant/respondent’s cellular telephone number; (ii) attaching a copy
of the summons, complaint/petition, and any other required documents to the text message;
and (iii) stating in the body of the text message: “Important information-You have been
sued. Read all of the documents attached to this message. To participate in the case, you
must follow the instructions listed in the attached summons. If you do not, the court may
decide the case without hearing from you, and you could lose the case.”
(2) In addition to the affidavit requirements of section 2-203 .1 of the Illinois Code of Civil
Procedure, a movant requesting service by text message, e-mail, or social media shall include
in the supporting affidavit the reasons the movant believes the defendant/respondent has
recently sent and received transmissions from a specific e-mail address or telephone number
or the defendant/respondent maintains an active social media account on the specific platform
utilized for service.
(3) Within 10 days of service of notice by special order of Court, the plaintiff/petitioner
shall send a copy of the summons, complaint/petition. and any other required documents by
mail, to the address of defendant’s/respondent’s last known residence.
(4) Return of Service by Special Order of Court. The person serving defendant/respondent
pursuant to special order of court shall file a proof of service as directed by the court. If service
is by social media, e-mail, or text message as described in paragraph (f)( 1). the proof of service
shall contain, at a minimum, the following:
(A) The details of how service was made, including the date service was made; the
identity of the social media platform, cellular telephone number, and/or e-mail address
used; the address of defendant’s/respondent’s last known residence; that a copy of the
summons, complaint/petition, and any other required documents were attached to the
message; and the date on which a copy of the summons, complaint/petition, and any other
required documents were mailed to defendant’s/respondent’s last known residence; and
(B) A screen print of the social media direct message, a copy of the sent e-mail
transmission. a screen print of the text message. and/or any other evidence of proof of
service the court determines to be equivalent.” Ill. Sup. Ct. R. 102(f)
The requirements for service via email are strict and I suspect courts will be suspicious of such service for some time so compliance with the details of this rule will be crucial to effectuate proper service.
Acceptable Service or Notice By Email In An 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)
In an Illinois divorce, if there is an attorney with an appearance on file, that attorney can receive service and notice via email.
Anything after service of the summons needs service/notice
“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)
If the party is not defaulted (or willing to be defaulted), they will have filed an appearance either personally or through an attorney.
That appearance will have an email address on it that allows all future service to occur 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).” Ill. Sup. Ct. R. 11(b)
The documents filed, served and/or noticed must likewise have emails for counter-service.
“All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.” Ill. Sup. Ct. R. 131(d)(1)
Once the attorney has notice, the represented party is deemed to have notice. “[I]t is well-settled that notice to an attorney is notice to the client and knowledge of an attorney is knowledge of, or imputed to the client, notwithstanding whether the attorney has actually communicated such knowledge to the client” Williams v. Dorsey, 273 Ill. App. 3d 893, 898 (1995)
If there’s not an attorney on the other side in an Illinois divorce but the party has filed their own appearance, they can also be served or noticed via email.
“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 131(d).” Ill. Sup. Ct. R. 11(b)
If a self-represented, pro se party wants to file, serve and/or notice anything. They must let the opposing party know they can be served via a specific email.
“All documents filed or served in any cause by a self-represented litigant upon another party shall bear the self-represented litigant’s mailing address and telephone number. Additionally, a self-represented litigant who has an e-mail address must designate a single e-mail address to which service may be directed under Rule 11. If a self-represented litigant does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.” Ill. Sup. Ct. R. 131 (d)(2)
Furthermore, the Circuit Clerk of the County you are being divorced in will also provide notice electronically (is there a different electronic notice that is not email?)
“The circuit clerk may provide notice to a party by hard copy or by electronic notice, pursuant to a uniform and standard policy adopted by the circuit clerk. A recipient may elect to receive notices by hard copy or electronically via the electronic address he or she has registered with the circuit clerk. The clerk must provide notice in the format chosen by the recipient. When providing notice electronically, the circuit clerk shall maintain a copy of the electronic content and a delivery receipt as part of the records of his or her office. Administrative communications of either the clerk or the court are not subject to the electronic notice requirements. If all policies and statutes are complied with, electronic notices shall have the same effect as hard copy notices.” 705 ILCS 105/12.1 (emphasis mine)
All post-summons communication via email is likely to be deemed acceptable notice.
“[S]ome notice, however informal, is greatly to be preferred to none at all.” (Internal quotation marks omitted.) Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 521 (1995)
After all, what is better notice than an email? An email is a permanent self-verifying record of information and where and when the communication was sent.
Post-Judgment Notice In An Illinois Divorce
After an Illinois divorce is over, the automatic acceptability of email is no longer viable after 30 days…because the attorney’s representation expires after 30 days.
“The attorney-client relationship terminates after the judgment of divorce is entered. The notice required after judgment is to the parties and not to their attorneys.” In re Marriage of Ponsart, 118. App. 3d 664, 665 (Ill. App. Ct. 1983)
If the person was self-represented, I suppose their current email address would still be a good service target.
You probably have to serve any post-judgment motions to enforce or modify via personal or substitute service.
You could, however, rely on Illinois Supreme Court Rule 105 to just send a certified letter.
“If new or additional relief, whether by amendment, counterclaim, or otherwise, is sought against a party not entitled to notice under Rule 104 notice shall be given him as herein provided.“
Rule 104 deals with noticing a summons. Once a divorce summons is already served, there is no more need for a summons. So, Rule 105 provides some alternatives.
Under Rule 105, “[t]he notice may be served by any of the following methods: (1) By any method provided by law for service of summons, either within or without this State. Service may be made by an officer or by any person over 18 years of age not a party to the action. Proof of service by an officer may be made by return as in the case of a summons. Otherwise proof of service shall be made by affidavit or by certification, as provided in Section 1-109 of the Code of Civil Procedure, of the server, stating the time, manner, and place of service. The court may consider the affidavit or certification and any other competent proofs in determining whether service has been properly made.” Ill. Sup. Ct. R. 105(b)(1)
Well, that is just personal or substitute service again with a $ 100 service fee and possibly weeks of waiting.
Alternatively, for post-judgment service where there is no valid email on an appearance, you can send out notice “[b]y prepaid certified or registered mail addressed to the party, return receipt requested, showing to whom delivered and the date and address of delivery. The notice shall be sent “restricted delivery” when service is directed to a natural person. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof.” Ill. Sup. Ct. R. 105(b)(2)
In reality, most people simply show up and submit themselves to service if they receive an email notice of a motion. Previous litigants know their ex-spouses are not going to give up. So, they might as well get the next stage of litigation over with.
If you have noticed something up via email and think the “show must go on” as it is the 21st century. If you’ve only gotten an email about your Illinois divorce and nothing else, you probably are not under the jurisdiction of an Illinois divorce court. Either way, contact my Chicago, Illinois family law firm to discuss this matter with an experienced Illinois divorce attorney.
