Non-suit a divorce in Illinois

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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Voluntary Dismissal Of A Petition For Dissolution Of Marriage in Illinois

Non-suit a divorce in Illinois

If you start a divorce in Illinois, you can stop the divorce anytime by simply filing a motion to voluntarily dismiss your petition for dissolution of marriage.

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” 735 ILCS 5/2-1009(a)

Voluntary dismissal is also, often, referred to as a “Non-Suit”

“The terms nonsuit and voluntary dismissal without prejudice are used interchangeably because there is no difference in effect between them.” Juen v. Juen, 297 NE 2d 633 – Ill: Appellate Court, 5th Dist. 1973

The right to voluntarily dismiss your divorce action in Illinois is absolute…so long as you follow the rules.

“[S]ection 2-1009(a) of the Code of Civil Procedure, by its terms, confers on plaintiffs an unfettered right to voluntarily dismiss their claims without prejudice, upon proper notice and payment of costs, “at any time before trial or hearing begins.”” Morrison v. Wagner, 191 Ill. 2d 162, 165 (Ill. 2000)

The solution to a possible voluntary dismissal is to have a counter-petition on file. If a counter-petition is on file, the divorce case will just proceed on the counter-petition after the petition is dismissed.

“A dismissal under subsection (a) of this Section does not dismiss a pending counterclaim or third party complaint.” 735 ILCS 5/2-1009

Almost anything can be a counter claim. So, review your filings if you want to maintain the divorce action as the respondent.

A counterclaim is “a cause of action which seeks affirmative relief,” distinguishing it from an answer or affirmative defense.” Benckendorf v. Burlington Northern R.R. (1983), 112 Ill. App.3d 658, 662; 

If a counter-petition has not been filed and the court has not granted leave to file a counter-petition before entering the dismissal order, the dismissal must be granted no matter how unfair it seems to the Respondent.

“Numerous cases have referred to the plaintiff’s “absolute right” to dismiss his action.” In re Marriage of Wright, 415 NE 2d 1196 – Ill: Appellate Court, 1st Dist. 1980

“[P]etitioner’s right to voluntarily dismiss her action must be tempered by regard for the efforts and expenses borne by respondent in answering the suit, and that considerations of judicial economy may outweigh a plaintiff’s right to dismiss. If we find, however, that petitioner had an absolute right to dismiss her action at that stage of the proceedings, then respondent’s claims of prejudice must be unavailing.” In re Marriage of Wright, 415 NE 2d 1196 – Ill: Appellate Court, 1st Dist. 1980

When Can You File A Motion To Voluntarily Dismiss Your Illinois Divorce?

If a trial has begun in your case, you can still move to dismiss your divorce case but a judge may not grant that dismissal at that stage.

A “trial judge must grant a voluntary dismissal only if it is presented before the trial commences. After a trial or a hearing begins, the decision to grant the motion is within the judge’s discretion.”In re Marriage of Yelton, 676 NE 2d 993 – Ill: Appellate Court, 1st Dist., 3rd Div. 1997

“If trial or hearing has begun, then under this section, the plaintiff can dismiss only “on terms fixed by the court,” one of which, of course, could be dismissal with prejudice. Thus, whether trial or hearing has begun is not a matter of discretion but rather a substantial legal question which determines whether the court erred by not deciding if any conditions should have been imposed on the dismissal.” Kahle v. John Deere Co., 472 N.E.2d 787 (Ill. 1984)

A trial is a trial. All of the temporary motions in advance of trial can not serve as a barrier to a motion for voluntary dismissal. Even the final motion, moments before trial, a motion in limine cannot stop a voluntary dismissal.

“Motions in limine are pretrial motions…Even though the motions in limine were heard on the date scheduled for trial, they concerned pretrial matters and were not part of the trial itself.” Kahle v. John Deere Co., 472 N.E.2d 787 (Ill. 1984)

A motion for voluntary dismissal also requires notice (as all motions do) but the failure to provide proper notice will not stop a petitioner to an Illinois divorce from exercising their absolute right to dismiss that petition.

“Plaintiff filed his motion for voluntary dismissal immediately after his motion for continuance was denied and, therefore, without notice. While we agree defendant should have been notified of plaintiff’s voluntary dismissal motion prior to the court’s ruling thereon, we do not see that the defendant was prejudiced by the trial judge’s decision to hear the motion at that time.” Mizell v. Passo, 147 Ill. 2d 420, 428 (Ill. 1992)

“[W]here the defendant had been given a short recess to review the motion and an opportunity to present argument thereon and the trial court’s order granting the voluntary dismissal required that the plaintiff pay costs, no prejudice had resulted.” Valdovinos v. Luna-Manalac Medical Center, 328 Ill. App. 3d 255, 267 (Ill. App. Ct. 2002)

Before Zoom became the standard operating procedure, attorneys would simply present a motion for non-suit or voluntary dismissal in open court and have the court prepare a proposed order immediately. The opposing party had no time to prepare a counter-petition, have that counter-petition signed and filed before the order to dismiss would be granted.

Now, under Zoom procedures, orders usually get entered later in the day giving the other party the opportunity to prepare a counter-petition and file it. Therefore, judge’s often grant the other party leave to file a counter-petition within a set time frame.

Judges should not grant the other party leave to file a counter-petition because it makes the absolute right to dismiss null and void.

“If this court were to allow a belated counterclaim to frustrate petitioner’s right to dismiss her action, defendant would have a “de facto” veto power over plaintiff’s statutory right of voluntary dismissal.” In re Marriage of Wright, 415 NE 2d 1196 – Ill: Appellate Court, 1st Dist. 1980

Why Would Someone Voluntarily Dismiss Their Divorce Petition?

Outside of reconciliation, the temptation to dismiss a divorce petition is strong…if the divorce isn’t going your way. A series of bad rulings from a judge, prejudicial evidence, and the burden of discovery may provoke the Petitioner to say, “I’ll just try this later.”

All the work in the divorce essentially disappears and all the temporary orders are dismissed.

Any temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

Still, the right to voluntarily dismiss a petition for dissolution of marriage is absolute in Illinois no matter what the reason.

“It has been broadly held that the voluntary dismissal statute grants plaintiffs the absolute privilege to dismiss regardless of motive.” In re Marriage of Manns, 583 NE 2d 707 – Ill: Appellate Court, 5th Dist. 1991

If the case is deep into discovery and the petitioner voluntarily dismisses the case, the petitioner may be liable for expenses by the other party.

“A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, expert witness fees, reproduction costs, travel expenses, postage, and phone charges. Ill. Sup. Ct. R. 219(e)

But, if the divorce is dismissed, the parties remain married so the expenses incurred would be marital and the court would have to allocate those expenses in the next divorce case (if it gets filed)

If a subsequent divorce case does get filed, the next divorce court can look to orders from the previous case for information and guidance as to new rulings.  

“[S]ection 2-1009 does not automatically immunize a plaintiff against the bar of res judicata or any other legitimate defenses a defendant may assert in response to the refiling of voluntarily dismissed counts.  To allow section 2-1009 to immunize plaintiffs against the defendants’ defenses would impair judicial economy and defeat the public policy underlying res judicata.” Zuniga v Dwyer, 323 Ill App 3d 508, 512, 752 NE2d 491, 495 (1st D 2001)

Duty To Pay Costs If Voluntarily Dismissing A Divorce In Illinois

A voluntary dismissal of a petition for dissolution of marriage will only be granted if the dismisser pays the other party’s costs.

“The plaintiff may…upon payment of costs, dismiss his or her action” 735 ILCS 5/2-1009(a)

“Upon proper notice and payment of costs, a plaintiff has an absolute right to dismiss his action before a trial or hearing has begun, and the trial court has no discretion to interfere with the exercise of that right.” City of Palos Heights v. Village of Worth, 331 NE 2d 190 – Ill: Appellate Court, 1st Dist. 1975

The definition of “costs” is “expenses necessarily incurred”

“[N]either the Illinois costs statute nor the supreme court rules provide a specific definition of costs. However, the term has acquired a fixed and technical meaning in the law. Costs are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for the expenses necessarily incurred in the assertion of his rights in court.” Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 166 (Ill. 1982)

Those “necessary expenses” do not include litigation expenses, i.e. attorney’s fees.

“[L]itigant[s are] not entitled to recover the ordinary expenses of litigation.” Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 166 (Ill. 1982)

If a “cost” is not an ordinary expense of litigation (attorney’s fees) then costs are probably only the filing fees associated with the divorce case.

Again, if the divorce is dismissed, all of the expenses associated with the divorce are now marital expenses which the parties must now bear together…until one of them files for divorce again.

Attorney’s Fees After An Illinois Divorce Is Voluntarily Dismissed

If a divorce case is voluntarily dismissed, the parties will still owe their attorneys money. The attorneys cannot collect the money owed for the divorce…in divorce court.

“[A] trial court may not consider a petition for attorney fees after a divorce case has been voluntarily dismissed.” In re Marriage of Lucht, 701 NE 2d 267 – Ill: Appellate Court, 1st Dist., 3rd Div. 1998

After a divorce has been dismissed, “[p]ublic policy forbids that parties to a divorce suit should be kept in a state of hostile litigation” Watson v. Watson, 82 NE 2d 671 (1948)

The individual divorce litigants still may owe their attorneys money and that money can be collected in small claims or other courts via a collections attorney.

If you think there might be a strategic advantage to you voluntarily dismissing your Illinois divorce case, contact my Chicago, Illinois family law firm to learn more about whether it truly is to your advantage to non-suit your divorce case and, if so, how you should go about doing so.