Posted on October 22, 2023

Void Vs. Voidable Orders In An Illinois Divorce

It is not usual to take issue with a judge’s decision during or after an Illinois divorce. That same judge (or their predecessor) will not be pleased when you ask that the court to reverse their own order. The judge may glower from the bench and query, “is it your contention that this order is void or voidable?”

Instead of stammering while contemplating this most abstract of questions, you should know in advance the difference between a void and a voidable order in an Illinois divorce.

All Judgments and Final Orders In An Illinois Divorce Are Voidable

The first concept to understand is that ALL judgments and final orders are voidable via 735 ILCS 5/2-1301 and/or 735 ILCS 5/2-1401.

If the motion to vacate is filed within 30 days of the order’s entry, the court can throw out (“void”) the order for any reason whatsoever.

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e)

If more than 30 days have passed, there are additional hurdles to vacating (“voiding”) an Illinois divorce court’s judgment or final order.

“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section…All relief…shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered…[but] the petition must be filed not later than 2 years after the entry of the order or judgment. 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

Beyond the statute 735 ILCS 5/2-1401, there is case law requiring a meritorious reason for the motion to vacate that was not available at the time the order was entered.

“A section 2-1401 petitioner is not entitled to relief `unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.’” Kaput v. Hoey, 530 NE 2d 230 – Ill: Supreme Court 1988 (Quotations Omitted)

Furthermore, the party seeking to vacate the order must show that they acted on this “meritorious defense” as quickly as possible.

“Due diligence requires the section 2-1401 petitioner to have a reasonable excuse for failing to act within the appropriate time. Since section 2-1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or negligence a party relying on section 2-1401 is not entitled to relief unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently, when he failed to initially resist the judgment. In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys.” Smith v. Airoom, Inc., 499 NE 2d 1381 – Ill: Supreme Court 1986 (Citations Omitted)

These are difficult proofs…especially when you are asking a judge to throw out the order THE JUDGE THEMSELVES ENTERED.

The court need not void the entire order. “Where parts of an order are clearly separable, only that part which is in excess of the authority granted to the court is void.” Shanklin v. Hutzler, 294 Ill. App. 3d 659, 665 (1997)

Alternatively, no proofs are required if the court never had jurisdiction in the first place to enter the order. The orders of a court without jurisdiction are void.

Void Judgments In An Illinois Divorce

“[W]hen a section 2–1401 petitioner alleges that the challenged judgment is void, the allegation substitutes for and negates the need to allege a meritorious defense and due diligence.” LVNV Funding, LLC v. Trice, 32 N.E.3d 553, 557 (Ill. 2015)(citation and quotes omitted)

The statute specifically states that all the prerequisites for vacating an order are unnecessary should the order be deemed void.

“Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” 735 ILCS 5/2-1401(f)

Void orders should never have been entered in the first place.

“A void order or judgment is, generally, one entered by a court without jurisdiction of the subject matter or the parties, or by a court that lacks the inherent power to make or enter the order involved. A void judgment is from its inception a complete nullity and without legal effect.” Ford Motor Cre. Co. v. Sperry, 214 Ill. 2d 371, 379 (Ill. 2005)(citations omitted)

As such, void judgments can always be vacated at any time. “Under Illinois law, a party may challenge a judgment as being void at any time…Void judgments thus occupy a unique place in our legal system: to say that a judgment is void or, in other words, that it was entered without jurisdiction, is to say that the judgment may be challenged in perpetuity.” LVNV Funding, LLC v. Trice, 32 N.E.3d 553, 562 (Ill. 2015)

After 2 years have passed since entry of the order, the only relief available is if the order is void.

“The painfully obvious reason why [the litigant] has phrased his argument in terms of subject matter jurisdiction is that an order that is beyond the timeline of a direct appeal or a section 2-1401 petition cannot be assailed unless it is void.” In re Marriage of Tronsrue, 2024 IL App (3d) 220125

Void orders are orders where the court did not have subject matter jurisdiction or personal jurisdiction.

“[O]nly the most fundamental defects, i.e., a lack of personal jurisdiction or lack of subject matter jurisdiction…warrant declaring a judgment void.” LVNV Funding, LLC v. Trice, 32 N.E.3d 553, 563 (Ill. 2015)

The distinction between void and voidable orders is whether the court had subject matter jurisdiction or personal jurisdiction over the parties.

“[W]hether a judgment is void or voidable depends on whether the court entering the challenged order possessed jurisdiction over the parties and the subject matter.” In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998)

Void orders do not need a reason to be vacated. Void orders only need a lack of jurisdiction to be proven.

If the court EVER had subject matter jurisdiction, the order is merely voidable not void per se.

Subject matter jurisdiction concerns the court’s power “to hear and determine cases of the general class to which the proceeding in question belongs.” In re M.W., 232 Ill. 2d 408, 415 (2009).

In a divorce, “[A] trial judge sitting in the domestic relations division of the circuit court of Cook County has jurisdiction to hear all justiciable issues.” In re Marriage of Isaacs, 260 Ill. App. 3d 423, 427 (1994)

All divorce courts in Illinois are part of a circuit court. “Circuit Courts shall have original jurisdiction of all justiciable matters.” Ill. Const. Art. VI, § 9.

A “justiciable issue” or a “justiciable matter” is “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.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. 199 Ill. 2d 325, 335 (2002).

That is everything…there is subject matter jurisdiction in an Illinois divorce court so long as there is a statute, rule or case law tangentially related to what was pled.

It does not matter if the pleadings or motions are incorrect. “Subject matter jurisdiction does not depend upon the legal sufficiency of the pleadings.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. 199 Ill. 2d 325, 335 (2002).

If something is claimed or even referenced to that is in the purview of a divorce court; children, support and/or division of assets then subject matter jurisdiction attaches.

“[T]he only consideration is whether the alleged claim falls within the general class of cases that the court has the inherent power to hear and determine. If it does, then subject matter jurisdiction is present.” In re Luis R., 239 Ill. 2d 295, 301 (2010) (quoting Belleville Toyota, 199 Ill. 2d at 340)

Personal jurisdiction is a lot easier to establish or disprove. If a party has not filed an appearance or was not appropriately served, there is no personal jurisdiction. “Personal jurisdiction may be acquired either by the party’s making a general appearance or by service of process as statutorily directed.” In re Marriage of Verdung, 535 NE 2d 818 – Ill: Supreme Court 1989

Subject matter jurisdiction and personal jurisdiction have nothing to do with whether the court made a good decision or not.

“Jurisdiction does not depend on the correctness of the decision made and is not lost because of an erroneous decision.” Zaferopulos v. City of Chicago, 206 Ill. App. 3d 904, 909 (1990)

“Once a court has acquired jurisdiction, an order will not be rendered void merely because of an error or impropriety in the issuing court’s determination of the law.” Herrera v. Herrera, No. 1-20-0850, 14 (Ill. App. Ct. 2021)

Collateral Attacks In An Illinois Divorce

The absolute lack of focus on the substance of the order and the complete focus on jurisdiction is why proving an order or judgment is void is called a “collateral attack.”

Oddly, Illinois courts have never defined “collateral attack” but Hawaii’s Supreme Court did a pretty good job of explaining what a collateral attack is:

“A collateral attack is an attempt to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying such judgment or decree. The word collateral, in this connection, is always used as the antithesis of direct, and it is therefore wide enough to embrace any independent proceeding. To constitute a direct attack upon a judgment, it is said, it is necessary that a proceeding be instituted for that very purpose. If an appeal is taken from a judgment, or a writ of error, or if a motion is made to vacate or set it aside on account of some alleged irregularity, the attack is obviously direct, the sole object of the proceeding being to deny and disprove the apparent validity of the judgment. But if that action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral and falls within the rule. A direct attack on a judicial proceeding is an attempt to avoid or correct it in some manner provided by law. A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law.” Kapiolani Estate, Ltd. v. Atcherly, 14 Haw. 651, 661 (1903 (citations and internal quotation marks omitted)

Collateral attacks are not vacating the order because the order is wrong…but for some other reason. In Illinois, collateral attacks vacate orders because of lack of jurisdiction NOT because of anything actually written in the order.

“Judgments entered in a civil proceeding may be collaterally attacked as void only where there is a total want of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the parties.” (Internal quotation marks omitted.) In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998).

A voidable judgment, in contrast, “is one entered erroneously by a court having jurisdiction and is not subject to collateral attack.” People v. Castleberry, 2015 IL 116916

The perfect example of when an order is blatantly wrong and voidable but the court still has jurisdiction is when a court does something where there is no legal basis to do so. Illinois divorce courts handle issues so broad that they often cannot point to the statute or rule which allows the court to make that order. Even a complete lack of authority does not deprive the court of jurisdiction, however.

“[I]t cannot be the case that the failure to satisfy a certain statutory requirement or prerequisite can deprive the circuit court of its ‘power’ or jurisdiction to hear a cause of action….While the legislature can create new justiciable matters by enacting legislation that creates rights and duties, the failure to comply with a statutory requirement or prerequisite does not negate the circuit court’s subject matter jurisdiction or constitute a nonwaivable condition precedent to the circuit court’s jurisdiction.”

When A Judgment Is Found Not To Be Void In An Illinois Divorce

The court finding that the order you are challenging is NOT void does not defeat your motion to vacate. A voidable order can be vacated…but you have to proceed on the merits, not on the lack of jurisdiction.

Voidable judgments are “an erroneous judgment entered by a court that possesses jurisdiction and is not subject to collateral attack.” Nunez v. C&C Investments of Chicago, LLC, 2022 IL App (1st) 211423, ¶ 21

“A voidable judgment is one entered erroneously, either through mistake of fact or law or both, by a court having jurisdiction and is not subject to collateral attack… A voidable judgment may only be challenged directly, and the challenger must proceed under section 2-1401 and comply with all the requirements of that section.” In re Custody of Ayala, 344 Ill. App. 3d 574, 584 (Ill. App. Ct. 2003)

In conclusion, void orders should never have been entered because the court lacked jurisdiction and are therefore automatically thrown out upon proof of lack of jurisdiction. Voidable orders, however, can only be vacated if there is a good reason based on the order’s contents.

The level of abstraction required to distinguish between a void order and a voidable order does not gel well with the messy real world realities of a divorce. Still, your divorce lawyer better know the difference or you will both look like fools when the concept of void vs. voidable is queried by the court. To speak with an experienced Illinois divorce attorney, contact me for a free consultation.

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