Divorce is a touchy subject. Each party to a divorce knows a great deal of the other party’s secrets. The divorcing parties, armed with those secrets, are now trying to resolve their differences in a public forum: family court.
The reality is that divorcing couples really don’t know everything about each other. That’s part of why they are getting divorced. Therefore, public, written accusations about the other party may often be speculative with only a presumption that the accuser knows the facts with certainty.
For example, a spouse may accuse their spouse of “hiding unknown quantities of cash” or “grooming a child.” These are serious accusations…without much detail.
More common in a divorce pleading is the factual basis “upon information and belief.” This common refrain in divorce pleadings does NOT tell you anything.
The point of a pleading is to adequately inform the court and the opposing side of the specific controversy that needs to be resolved.
“No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” 735 ILCS 5/2-612(b)
“Pleadings serve to inform the court and the parties of the legal theories relied upon and to give notice of the factual issues which are to be tried.” People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 334 (1997)
Without sufficient detail in a pleading, a court does not have jurisdiction to rule on the issues presented (or, more likely, not presented). No detail, no jurisdiction. No jurisdiction, no relief.
“The court’s authority to exercise its jurisdiction and resolve a justiciable question is invoked through the filing of a complaint or petition. These pleadings function to frame the issues for the trial court and to circumscribe the relief the court is empowered to order; a party cannot be granted relief in the absence of corresponding pleadings. [Citations.] Thus, the circuit court’s jurisdiction, while plenary, is not boundless, and where no justiciable issue is presented to the court through proper pleadings, the court cannot adjudicate an issue sua sponte.” Ligon v. Williams, 637 NE 2d 633 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994
The intimate and emotional nature of divorce cases often allows for pleadings with presumptions and conclusions like “I have suffered abuse for years” or “Respondent is a narcissist.”
While these types of accusations may be true, the courts require more information to properly understand the issues before it.
“Conclusions of fact will not suffice to state a cause of action regardless of whether they generally inform the defendant of the nature of the claim against him.” Grund v. Donegan, 298 Ill. App. 3d 1034, 1039 (Ill. App. Ct. 1998)
Insufficiently detailed accusations are not allowed in Illinois pleadings.
“Illinois is a fact-pleading jurisdiction.” Marshall v. Burger King Corp., 856 NE 2d 1048 – Ill: Supreme Court 2006
Fact pleading is “a procedural system requiring that the pleader allege merely the facts of the case giving rise to the claim or defense, not the legal conclusions necessary to sustain the claim or establish the defense.” Black’s Law Dictionary (11th ed. 2019)
An Illinois pleading-filer “is required to set forth a legally recognized claim and plead facts in support of each element that bring the claim within the cause of action alleged.” Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 434 (2007)
This does not mean that you have to lay all of the proof out in the pleading. The allegation must be specific enough.
“[T]he plaintiff is not required to set out evidence; only the ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts” Chandler v. Illinois Cent. R. Co., 798 NE 2d 724 – Ill: Supreme Court 2003
But those allegations must be sufficient.
“[A] complaint may not rest on mere unsupported factual conclusions.” Grund v. Donegan, 298 Ill. App. 3d 1034, 1037 (Ill. App. Ct. 1998)
Not surprisingly, unsupported allegations are usually inflammatory. As Carl Sagan said about UFOs “extraordinary claims require extraordinary evidence.”
Without sufficient facts to establish claims, the claims are more prejudicial than probative and, thus, lose their relevancy.
“A trial court may reject offered evidence on grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty, or possibly unfair prejudicial nature.” People v. Harvey, 211 Ill. 2d 368, 392 (Ill. 2004)
Without sufficient facts, the pleading may be struck by the court.
“[A] complaint is deficient when it fails to allege the facts necessary for recovery.” Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348 (2003)
How specific is specific enough? That depends on the allegation. Accusations of fraud have the highest standard of specificity so they are a good guidepost as to what sufficiently detailed pleading should be.
“A high standard of specificity is imposed on pleadings asserting fraud. The facts constituting the alleged fraud must be stated with sufficient specificity, particularity, and certainty to apprise the opposing party of what he is called upon to answer. The pleading must contain specific allegations of facts from which fraud is the necessary or probable inference, including what representations were made, when they were made, who made the misrepresentations and to whom they were made.” CHATHAM SURGICORE v. HEALTH CARE SERVICE, 826 NE 2d 970 – Ill: Appellate Court, 1st Dist., 4th Div. 2005
The ubiquitous “upon information and belief” allegation is a great example of how the specificity of fact pleading should be determined on a case by case basis.
At first blush, “allegations made on information and belief by an adverse party are insufficient, for they are not equivalent to averments of relevant facts but rather put in issue only the pleader’s information and belief and not the truth or falsity of the “facts” referred to.” Fooden v. Board of Governors, 272 NE 2d 497 – Ill: Supreme Court 1971
“[B]ut at the pleading stage a plaintiff will not have the benefit of discovery tools to expose details about [the other party’s wrongdoings]. A plaintiff will have knowledge of what it did to learn those details, and should allege any efforts taken to determine the extent of the [alleged wrongdoing].” Patrick Engineering v. City of Naperville, 976 NE 2d 318 – Ill: Supreme Court 2012
Some kind of facts must be pled which are the basis of that ‘information and belief’. “[A]n allegation of fraud upon information and belief can not be sustained, unless the facts, upon which the belief is founded, are stated in the pleadings.’ “Green v. Rogers, 917 NE 2d 450 – Ill: Supreme Court 2009 (quotations omitted)
As a counterpoint, pleadings that merely reference custody allow courts to have unlimited jurisdiction to establish and/or modify custody. “Once the issue of custody was placed before the court, the court possessed broad discretion to alter custody or visitation rights to the extent required by the child’s best interests.” In re Marriage of Oros,
256 Ill. App. 3d 167, 170 (1994)
Fact-less pleadings get heard all the time, however, because an unspecific pleading will not be struck unless the other side objects to the pleading.
“All defects in pleadings, either in form or substance, not objected to in the trial court are waived” 735 ILCS 5/2-612(c)
An unspecific pleading is not the end of the world. Courts are happy to allow for amendments.
“If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings prepared.” 735 ILCS 5/2-612(a)
“[A] trial court has discretion to allow an amendment to the pleadings” Dvorak v. Primus Corp., 168 Ill. App. 3d 625, 635 (Ill. App. Ct. 1988)
Dismissal with prejudice is proper “where there is want of equity on the face of the complaint and it is clear that no amendment will aid it.” Dunavan v. Calandrino, 167 Ill. App. 3d 952, 960 (1988)
In reality, “[p]leading facts ‘on information and belief’ is a widely used device in both state and federal practice.” Challenging Your Beliefs About ‘Information and Belief,’ 21 No. 9 Westlaw Journal Intellectual Property 2 (August 20, 2014). “A plaintiff may sometimes be forced to present allegations that are based on information and belief, particularly when the necessary facts are
within the defendant’s sole knowledge.” In re Marriage of Reicher, 2021 IL App (2d) 200454, ¶ 42. “When a plaintiff sets out allegations on information and belief, he is representing that he has a good-faith reason for believing what he is saying, but acknowledging that his allegations are ‘based on secondhand information that [he] believes to be true.’ ” Pirelli Armstrong Tire Corporation Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011) (quoting Black’s Law Dictionary 783 (7th ed. 1999)).
Should a petition or motion be finally struck, sanctions may be imposed for wasting the court’s time with an insufficiently detailed pleading.
Rule 137 allows for sanctions “against a party or counsel who files a pleading or motion that is not well grounded in fact, is not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, or is interposed for any improper purpose.” In re Marriage of Schneider, 298 Ill. App. 3d 103, 108 (1998)
More commonly, the pleading will be appropriately amended or withdrawn if the facts, after investigation, do not exist.
The perfect defense to a motion to strike a pleading is to allege that the document is not a pleading at all, it is merely a motion. Divorce is unique among civil actions in that the only pleading may be the Petition for Dissolution of Marriage. Other filings may not be bound by these “fact pleading” rules as they are not really pleadings.
A judge, however, is likely to view an insufficiently detailed motion in the same light as an insufficiently detailed pleading. At the very least, a judge will likely order the insufficiently-detailed-motioner to go “back to the drawing board.”
There is no better defense than a good offense. A public document full of unsubstantiated accusations can be immediately attacked on its face with a motion to strike.
To learn more about how to strike down accusations contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
