Posted on November 5, 2021

Statutes Of Limitations, Timeliness and Laches In An Illinois Divorce

The average person has some concept of the basic rules of jurisprudence in the Anglo-American system. One of those concepts is “the statute of limitations”

A statute of limitations is “a time limit for suing . . . based on the date when the claim accrued.” Black’s Law Dictionary (7th ed)

“Statutes of limitations are intended to prevent unnecessary delay in bringing a claim by barring the claim after a certain period has elapsed.” Koelle v. Zwiren, 672 NE 2d 868 – Ill: Appellate Court, 1st Dist., 1st Div. 1996

“Statutes of limitation are designed to accelerate settlement of controversies and are therefore favored.” Bairstow v. Phillip State Bank & Trust Co., 331 Ill. App. 187, 191, 72 NE2d 871

These are all fine reasons to have a statute of limitations for legal issues like accidents, breaking a contract or crimes which occur in an instance. But, a divorce is about a marriage…which doesn’t happen in an instant. A divorce is the unwinding of a relationship spanning years. Furthermore, a divorce often deals with children who’s obligations are enforceable for years until they reach adulthood (and beyond in the case of college and disability)

Simply put, there are no statutes of limitations for divorces but there are definitely time limits.

Paternity Time Limits In Illinois

If a parent is contesting paternity, he (it’s almost always a “he”) has a tight time limit of 2 years to contest that he is not the father from the time he “knew or should have known” that he might not be the father.

“An action to declare the non-existence of the parent-child relationship brought under subsection (a) of this Section shall be barred if brought later than 2 years after the petitioner knew or should have known of the relevant facts. The 2-year period for bringing an action to declare the non-existence of the parent-child relationship shall not extend beyond the date on which the child reaches the age of 18 years. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the existence of the parent-child relationship.” 750 ILCS 46/205(c)

Only when the mother does not participate in the DNA test can the father be granted an extension in the time period to determine paternity.

“The 2-year period shall not apply to periods of time where the birth mother or the child refuses to submit to deoxyribonucleic acid (DNA) testing. The 2-year period for bringing an action to declare the non-existence of the parent-child relationship shall not extend beyond the date on which the child reaches the age of 18 years.” 750 ILCS 46/205(d)

Petitions To Vacate And Time Limits In An Illinois Divorce

Orders get entered in Illinois divorce cases…and then new facts emerge that cause one party to want to contest that order. Parties have two (2) years to contest faulty orders entered in divorce court.

“[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment.” 735 ILCS 5/2-1401(c)

But, if the relevant facts were hidden or the party was under duress, the time frame to file a motion to vacate will be extended.

Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” 735 ILCS 5/2-1401(c)

Furthermore, if the fact that is the basis for the motion to vacate has only been discovered, the party requesting that the judgment be vacated can invoke the discovery rule.

The discovery rule tolls the limitations period until a person “knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981).

One could imagine any hidden or otherwise undisclosed asset in a divorce being the basis for invoking the discovery rule. But “[t]he phrase ‘wrongfully caused’ does not mean [mere] knowledge of a specific defendant’s negligent conduct or knowledge of the existence of a cause of action.” Young v. McKiegue, 303 Ill. App. 3d 380, 388 (1999)

Rather, an injury is ‘wrongfully caused’ when a party possesses “sufficient information concerning his
injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct
is involved.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981).

A party should have been asking hidden assets during the divorce. So, if two years have passed since that opportunity…they are out of luck.

If, however, the other party actively lied about the hidden assets by “tender[ing their] comprehensive financial statement and affirmatively misrepresented to [the other spouse] that all of her assets were disclosed in it and accounted for in the MSA. That should be enough to vacate the allocation of all the assets.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160 – Ill: Appellate Court, 2nd Dist. 20

Statute of Limitations For Torts Between Spouses In An Illinois Divorce

You can sue your spouse in Illinois

“A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1

If you do sue your spouse, you must abide by the statute of limitations as required for the tort you are suing your spouse for.

“Defendant may, within the time for pleading, file a motion for dismissal of the action [if]… the action was not commenced within the time limited by law” 735 ILCS 5/2-619(a)

If you’re living with someone as their spouse, the tort probably didn’t happen all at once. The complained of action was probably a daily occurrence…which extends the time period until the last time the repeated tort happened.

“Generally, a limitations period begins to run when facts exist that authorize one party to maintain an action against another. However, under the “continuing tort” or “continuing violation” rule, “where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003 (Citations Omitted)

Time Limits On Divorce Attorney Fees In Illinois

Parties enter into contracts with their divorce attorneys to pay their divorce attorneys. The divorce attorney has 10 years within which to collect on those contracts.

“[T]he statute of limitations for actions on written contracts, including retainer agreements, is 10 years” Nottage v. Jeka, 667 NE 2d 91 – Ill: Supreme Court 1996

Illinois divorce attorneys do not need to go to a separate court to pursue their own clients for their fees. If a petition for fees is filed within 14 days of the final hearing (also known as a prove up).

“A petition for contribution, if not filed before the final hearing on other issues between the parties, shall be filed no later than 14 days after the closing of proofs in the final hearing or within such other period as the court orders.” 750 ILCS 5/503(j)

When there’s no prove up because the divorce case is dealing with enforcement or other post-decree issues, there is no time limit for a divorce lawyer to pursue his client or the adverse party for fees.

“[T]he time limitation period provided in section 503(j) of the Illinois Marriage and Dissolution of Marriage Act…does not apply to postdecree petitions for contribution of attorney fees.” Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009

Statutes Of Limitations For Enforcement Of Judgments

When one former spouse or co-parent owes the other former spouse or co-parent money for child support or maintenance, that amount of money can be memorialized as a money judgment and collected in other courts of law beyond the divorce court.

These money judgments expire after 7 years but they can be revived.

“[N]o judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by Section 2-1601 of this Act” 735 ILCS 5/12-108

A money judgment may expire but it can be revived (made enforceable again) at any time over the next 20 years.

“[A] judgment may be revived by filing a petition to revive the judgment in the seventh year after its entry, or in the seventh year after its last revival, or in the twentieth year after its entry, or at any other time within 20 years after its entry if the judgment becomes dormant and by serving the petition and entering a court order for revival as provided in the following subsections.” 735 ILCS 5/2-1602(a)

A money judgment can only be revived so many times. 20 years is the maximum life of a money judgment

“A petition to revive a judgment…may be filed no later than 20 years next after the date of entry of such judgment.” 735 ILCS 5/13-218

Foreign judgments between former spouses can be enrolled and enforced in Illinois…for 15 years or the expiration date as required by the original country.

“Statute of limitations. An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or 15 years from the date that the foreign-country judgment became effective in the foreign country” 735 ILCS 5/12-669

Child support orders used to get the full 20 years maximum enforcement period no matter where they originated from.

“Illinois courts have consistently held that an Illinois divorce decree ordering payment of child support is a money judgment subject to the 20-year limitation for enforcement of judgments contained in…the Code. Therefore, a parent is not limited in the collection of child support arrearages to those amounts accrued during the period immediately preceding the filing of the petition [to enroll a foreign judgment]” In re Marriage of Kramer, 625 NE 2d 808 – Ill: Appellate Court, 4th Dist. 1993

Since 1997 the following amendment was made to the statute making an exception for child support and the 20-year limitation on enforcement. “Child support judgments, including those arising by operation of law, may be enforced at any time.” 735 ILCS 5/12-108(a)

“The language added by the 1997 amendment plainly and unambiguously provides that child support judgments may be enforced at any time, and section 12-108(a) as amended thus excludes child support judgments from those judgments that have a time limit on their enforcement and require revival.” In re Marriage of Saputo, 845 NE 2d 901 – Ill: Appellate Court, 1st Dist., 6th Div. 2006

Many divorce judgment are not money judgments. Most of the items in a divorce judgment are about ownership of marital and non-marital assets.

“[S]ection 2-1602…applies only to money judgments against judgment debtors.” PECK AND PECK, 126 NE 3d 724 – Ill: Appellate Court, 2nd Dist. 2019

Illinois case law further provides that non- money judgments are also not time barred by Section 12-108.

“Section 12-108 is to be read [together] with section 2-1602, as they each address the subjects of enforcement and revival of judgments, and thus must be considered with reference to one another so that they may be given harmonious effect. Section 12-108 provides that “no judgment” shall be enforced after seven years unless timely revived as provided by section 2-1601, which in turn provides that revival petitions must accord with section 2-1602. Section 2-1602 only applies to the revival of money judgments against judgment debtors.” See In re Estate of Pigott, 139 NE 3d 642, 647 – Ill: Appellate Court, 1st Dist., 5th Div. 2019 (citations and quotations omitted)

Many orders are both injunctive and money judgments. For example, a party could be ordered to sell a home and pay their spouse $ 50,000 from the proceeds.

If an “order at issue is [partly] an injunction, and not a [pure] money judgment, because it required [a party] to perform several positive acts…which necessarily must occur before the parties could determine the amount owed [as a money judgment] to the other party….[then] requested relief regarding the [the injunction/money judgement] is not time-barred.” In re Marriage of Poulsom, 2022 IL App (1st) 220100

Therefore, Illinois divorce judgment awards of houses, retirement accounts and any other actual thing that is not purely cash can be enforced forever without any statute of limitations.

Statute of Limitations And Land After An Illinois Divorce

Parties to an Illinois divorce usually award a jointly held property to one person. That person should effectuate their ownership by filing a quit claim deed with the recorder of deeds office. Failure to file a quit claim deed means the other party continues to co-own the property despite what the agreement says.

However, if either party continues to live long enough on the property, an adverse possession claim can be made after 20 years of exclusive occupancy. 735 ILCS 5/13-101

“Furthermore, the 20 years of possession must have been: (1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious, and exclusive; and (5) under claim of title inconsistent with that of the true owner.” Gacki v. Bartels, 859 NE 2d 1178 – Ill: Appellate Court, 2nd Dist. 2006

Laches In An Illinois Divorce

Outside of the hard and fast deadlines listed above, a party to an Illinois divorce can also invoke the concept of laches to say that the petition or motion is being brought too late.

Laches is “negligence, consisting in the omission of something which a party might do, and might reasonably be expected to do, towards the vindication or enforcement of his rights.” Black’s Law Dictionary (7th ed)

If you think your ex is a day late and a dollar short, you can try to invoke laches as a defense.

“Laches will operate to bar equitable relief where the failure to assert a right, along with a lapse of time and other circumstances, causes prejudice to the adverse party.” Finley v. Finley (1980), 81 Ill.2d 317, 330

Laches usually refers to a party having “sat on their hands” for too long to now request relief or a defense…but time is not really that key to a laches claim.

“Unlike a statute of limitations, laches is more than a mere passage of time ‘but principally a question of the inequity of permitting the claim to be enforced, an inequity founded upon some change in the condition or relation of the property and parties.’ ” Kampmann v. Hillsboro Community School District No. 3 Board of Education, 2019 IL App (5th) 180043, ¶ 15 (quoting Pyle v. Ferrell, 12 Ill. 2d 547, 552 (1958))

Laches is not a relief based on a statute. Laches is not an Illinois Supreme Court Rule. Laches is an idea.

“Laches is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. Laches is an equitable doctrine to be invoked in the discretion of the court, and a finding by the trial court that a party is guilty of laches will not be disturbed on review unless this determination is so clearly wrong as to constitute an abuse of discretion. There is no absolute rule by which laches can be determined, and what facts will combine to constitute laches depends upon the circumstances of each case. However, laches is not available as a defense unless defendant was prejudiced by plaintiff’s delay in bringing his claim and that plaintiff have knowledge of the facts on which his claim is based. However, it is not necessary that plaintiff have actual knowledge of the specific facts upon which his claim is based. If the circumstances are such that a reasonable person would make inquiry concerning these facts, a party will be charged with laches if he fails to ascertain the truth through readily available channels.” Bobin v. Tauber, 360 NE 2d 368 – Ill: Appellate Court, 1st Dist. 1976

The doctrine of laches was created by courts to promote justice, and not to protect fraud and injury, and it is said to be founded upon the maxim that equity aids the vigilant, and not those who slumber on their rights.” Carlson v. Carlson, 98 NE 2d 779 – Ill: Supreme Court 1951

In the end, laches are so amorphous that it is entirely up to the judge whether to apply them to an Illinois divorce case or not.

“Laches is an equitable doctrine to be invoked or rejected in the trial court’s discretion.” Finley v. Finley (1980), 81 Ill.2d 317, 330

“Whether laches bars a claim depends on the facts and circumstances of each case.” Phoenix Capital, LLC v. Nsiah, 2023 IL App (1st) 220067

Laches is primarily about the lack of due diligence. 

“Two elements are necessary for the application of laches: (1) lack of due diligence by the party asserting the claim’ and (2) prejudice to the opposing party.'” Noland v. Mendoza, No. 127239, 9 (Ill. 2022)(citations and quotations omitted)

Laches can’t really apply in a pre-decree divorce. Nothing is untimely until the divorce is filed.

The doctrine of laches is invocable by a party to an Illinois divorce only when there is: “(1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.”  Pyle v. Ferrell, 12 Ill.2d 547, 552

The fourth factor is the most troublesome requirement in an Illinois divorce. It is hard to conceive of too many instances where a party is harmed by the other party not enforcing the terms of their divorce decree.

Still, circumstances can change so much over time that a court can find that “[t]he passage of time must have caused such a change of circumstances to the defendant that granting relief to the plaintiff would be inequitable and unjust.” Higgins v. Brunswick Corp., 76 Ill. App. 3d 273, 279 (1979).

There has to be an injury to the other party based on the party’s non-enforcement.

“Laches is not available as a defense, however, unless the party asserting the doctrine has suffered injury or prejudice as a result of the other party’s delay in instituting an action” Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988

Laches is also rarely invoked where there are actual statutes of limitations.

“[I]n fixing the period in which rights and claims would be barred by laches, equity follows the law….Thus, when a claim or right is not barred by a limitations period, laches will not apply unless special circumstances make it inequitable to grant relief requested.” In re Marriage of Kramer, 253 Ill. App. 3d 923, 933 (1993)

As you have read above, there are not many statutes of limitations which apply to family law. So, the distinction and competition between statutes of limitations and laches is rarely relevant in an Illinois divorce.

Laches And Child Support In Illinois

Laches is often brought up by parents who have not paid child support and are shocked that they have to pay it all at once after all of these years. These parents contend, “If the other parent wanted all the money, they should have asked for it earlier. I don’t have it all now.” Those parents will not get much sympathy from an Illinois domestic relations court.

“[A] spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered.” Finley v. Finley (1980), 81 Ill.2d 317, 330

“In fact, [a parent who didn’t pay child support] may be regarded as having benefited by the delay as he has not made the payments [that] are owed.” Heinze v. Heinze, 398 NE 2d 1187 – Ill: Appellate Court, 1st Dist. 1979

A party asserting laches “could only have benefitted by the use of the funds which he would not have had if he had made timely payments of child support.” In re Marriage of Yakubec, 507 NE 2d 117 – Ill: Appellate Court, 1st Dist. 1987

In fact to allow laches for child support enforcement would create horrible incentives. People would avoid paying child support…so they could avoid paying child support.

“If indeed child-support arrearage could be defeated merely by the passage of time, it would put a greater burden on those people awarded child support to make every effort to pursue and in some cases harass the person obligated to pay the child support in order to protect their claim, and would reward those obligated to pay child support who are able to avoid payment of the same either by mere refusal or secreting themselves from the claimant.” Baldwin v. Baldwin, 315 NE 2d 649 – Ill: Appellate Court, 3rd Dist. 1974

In fact, parties are not even allowed to automatically reduce or terminate child support when a child turns 18 unless there is a previous court order which allows for such a reduction or termination.

“[D]efendant is guilty of laches for sitting on his right to seek a court order reducing his support obligation. The Court is without authority to retroactively modify child support and the defendant may not unilaterally reduce unallocated child support as each child reaches majority.” Jones v. Meade, 467 NE 2d 657 – Ill: Appellate Court, 4th Dist. 1984

Laches and Maintenance In An Illinois Divorce

While child support cases cannot invoke laches, maintenance enforcement cases actually have a history of success when invoking latches.

“In Gordon v. Baker, 182 Ill. App. 587, alimony was not collected for a period of 30 years, and in addition, the plaintiff had remarried twice since her divorce and, although the decree gave her custody of their child, she never in fact took care of this child. The action was brought after defendant’s death and the court held that laches barred her action because the long delay precluded the opportunity of defendant to raise valid defenses.

 Brown v. Brown, 108 So.2d 492 (Fla. App. 1959), involved eleven year delay before a petition for back alimony and interest was filed. There the wife expressly relinquished her right to collect alimony by pledging not to seek alimony if the husband would take their son into his business, which he did. The court found that laches barred her action and specifically determined that the husband was injured because, in reliance of his wife’s relinquishment, he had remarried and disposed of his interest in the business.

In Hamilton v. Hamilton, 94 P.2d 127 (Col. 1939), plaintiff filed a petition for citation charging that defendant had disregarded his obligations to pay alimony. Plaintiff had waited 17 years to enforce the judgment for alimony and then did so by a contempt proceeding. The court determined that as to the contempt proceeding plaintiff was barred by laches.”  Atwater v. Atwater, 18 Ill. App. 3d 202, 208 (Ill. App. Ct. 1974)

Laches And Paternity In Illinois

In Illinois, you are the parent…until someone becomes the new parent via adoption. You cannot come in at the last minute and assert your rights as a parent after the adoption has gone through.

“With regard to the first laches requirement, for a court to find that petitioner unreasonably delayed bringing the action to assert his parental rights, the petitioner must have failed to seek prompt redress after having knowledge of the facts upon which his claim is based. The petitioner, however, need not have actual knowledge of the specific facts upon which his claim is based if he fails to ascertain the truth through readily available channels and the circumstances are such that a reasonable person would make inquiry concerning these facts.” Eckberg v. Benso, 537 NE 2d 967 – Ill: Appellate Court, 1st Dist. 1989 (Citations Omitted)

An adoption court “could consider the adoptive parents’ laches claim where the trial court [had] taken into account facts upon which a finding of laches could have been made.” Eckberg v. Benso, 537 NE 2d 967 – Ill: Appellate Court, 1st Dist. 1989

In the end, Illinois courts will consider the child’s well-being primarily beyond the mere issue of whether a parent did not receive proper notice of an adoption. Illinois courts see “the reasonable need to apply that equitable principle to prevent a serious disruption of a stable family unit” Rodriguez v. Koschny, 57 Ill. App. 3d 355, 361 (Ill. App. Ct. 1978)

One advantage of being a family law lawyer is that there are very few hard deadlines unless they are imposed by the judge themselves. Still, in addition to being timely in general, your divorce attorney should know the few deadlines that do matter in an Illinois divorce or family law case. Contact my Chicago, Illinois family law firm today to learn more.

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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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