Posted on July 23, 2023

Subject Matter Jurisdiction In An Illinois Divorce

Going to divorce court can be like going to the mechanic where you go in for an oil change and come out with new timing belt. The stakes are so much higher in divorce court. You could go into a divorce court on a status call and find that you’ve lost custody of your children or you are barred from your own house.

You should know what is going to be decided in your divorce case in advance of the court date!

While there are numerous notice requirements in an Illinois divorce case, a party can tell a court to STOP by invoking the constitutional and fundamental legal concept of “subject matter jurisdiction.”

What Is Subject Matter Jurisdiction?

“Subject matter jurisdiction ‘refers to the power of a court to hear and determine cases of the general class to which the proceeding in question belongs.’ Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002)

“Subject-matter jurisdiction of the circuit court as derived from the constitution is the power of the court to hear and determine causes of action.” In re Marriage of Fox, 548 NE 2d 71 – Ill: Appellate Court, 4th Dist. 1989

“Circuit courts shall have original jurisdiction of all justiciable matters…” (Ill. Const. 1970, art. VI, § 9.)

A matter is justiciable if it is “subject to proper resolution on the merits by a court of justice” Black’s Law Dictionary (11th ed. 2019)

Subject matter jurisdiction is distinct from the requirements to provide notice. Subject matter jurisdiction is not about whether the parties knew what was going to happen but whether the court had the authority to do what it did.

“[B]ecause we have determined that the circuit court’s orders were void, as it lacked subject matter jurisdiction, no further discussion of lack of notice is necessary.” Ottwell v. Ottwell, 522 NE 2d 328 – Ill: Appellate Court, 5th Dist. 1988

Objecting To A Court Order For Lack Of Subject Matter Jurisdiction

So far, it sounds like a divorce court has subject matter jurisdiction over everything that comes before that court.

That is the point…the issue has to be before the court for the court to decide upon it.  

“In application to a particular controversy, jurisdiction is the right to hear and determine that controversy. Jurisdiction of the court to hear a particular controversy is invoked by filing an action.” In re Marriage of Fox, 548 NE 2d 71 – Ill: Appellate Court, 4th Dist. 1989

In an Illinois divorce court, an “action” is a petition for dissolution of marriage. A petition for dissolution of marriage asks for certain relief: a divorce, division of assets, maintenance, child support and resolution of custody issues. Anything outside of that (or more specific) needs to be properly brought before the court in advance of a court making a decision.

“The court’s authority to exercise its jurisdiction and resolve a justiciable question is invoked through the filing of a complaint or petition, pleadings which function to frame the issues for the trial court and circumscribe the relief the court is empowered to order.  A party cannot be granted relief in the absence of corresponding pleadings; if a justiciable issue is not presented to the court through proper pleadings, the court cannot sua sponte adjudicate an issue.” In re Custody of Ayala, 800 NE 2d 524 – Ill: Appellate Court, 1st Dist., 3rd Div. 2003 (citations omitted)

“Orders entered in the absence of a justiciable question properly presented to the court by the parties are void since they result from court action exceeding its jurisdiction.” Ligon v. Williams, 637 NE 2d 633 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994

An Illinois divorce court should not have the freedom to tinker with a parent-child relationship when the pending motion is requesting something entirely different.

“Filing a petition for contempt with respect to visitation in a dissolution proceeding does not present to the trial court a “justiciable matter” sufficient for the trial court to make a child custody determination. The justiciable matter before the court was an alleged violation of the visitation provisions of the judgment of dissolution. Child custody was not.” In re Marriage of Fox, 548 NE 2d 71 – Ill: Appellate Court, 4th Dist. 1989

Likewise, an Illinois divorce court should not make financial decisions if there is nothing financial before the court.

“Without a petition to modify child support on file, the circuit court’s subject matter jurisdiction was not invoked, and the orders entered with regard to petitioner’s rights to child support were void.” Ottwell v. Ottwell, 522 NE 2d 328 – Ill: Appellate Court, 5th Dist. 1988

While money is fungible, one type of financial relief cannot be substituted by another type of financial relief…if not properly before the court.

“[T]he trial court’s order requiring Brent to pay 50% of Kristi’s supplemental insurance from January 1, 2018 (11 months prior to the filing of Kristi’s rule to show cause petition), to February 13, 2020, pursuant to Kristi’s rule to show cause petition is void for a lack of subject matter jurisdiction.” In re Marriage of Britton, 200 NE 3d 1 – Ill: Appellate Court, 5th Dist. 2022

If an Illinois divorce judge makes a decision when the court did not have proper subject matter jurisdiction at the time, that decision is void.

“A void judgment is one entered by a court without jurisdiction of the parties or the subject matter or that lacks `the inherent power to make or enter the particular order involved. Such a judgment may be attacked at any time” In re Marriage of Fox, 548 NE 2d 71 – Ill: Appellate Court, 4th Dist. 1989

Invoking Subject Matter Jurisdiction Without A Specific Filing

While the above cases require specific motions or pleadings to be on file before a court can make a decision. There are plenty of counterarguments to give an Illinois divorce judge very broad jurisdiction to decide on virtually any matter.

“To invoke the circuit court’s subject matter jurisdiction, a party need only present a justiciable matter, i.e., a controversy appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of parties having adverse legal interests.” LVNV Funding, LLC v. Trice, 2015 IL 116129 (quotes omitted)

No motion on file is no problem so long as the facts are largely agreed.

“While there was no pending petition or motion before the trial court in this case, that fact alone will not deprive the court of the authority to act where the parties agree in a stipulation concerning some matter which requires resolution by the court.” People ex rel. Gibbs v. Ketchum, 284 Ill. App. 3d 70, 78 (1996)

Even a failure to follow the law cannot deprive a divorce court of jurisdiction.

“[T]he failure to comply with a statutory requirement or prerequisite does not negate the circuit court’s subject matter jurisdiction.” LVNV Funding, LLC v. Trice, 2015 IL 116129

Often a case may seem so screwed up (the case got dismissed, transferred or appealed) that it lost subject matter jurisdiction. Cases never lose subject matter jurisdiction. “Error or irregularity in the proceeding, while it may require reversal of the court’s judgment on appeal, does not oust subject matter jurisdiction once it is acquired.” In re MW, 905 NE 2d 757 – Ill: Supreme Court 2009

Subject matter jurisdiction is truly in the eye of the beholder…so your argument better be good.

If you are wondering “what just happened” after a court date…the court owes you an explanation. If the court cannot explain how they were able to make the decisions they did via a paper trial of filed motions and pleadings, the order is probably void. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

Share Article on


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.

More about This Topic

Relevant Articles

Call Now Button