Not appearing in an Illinois divorce case

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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What Happens If I Don’t Go To Court In My Illinois Divorce Case?

Not appearing in an Illinois divorce case

As of the writing of this article, people don’t physically go to court per many local court rules due to COVID. Still, parties to an Illinois divorce must appear sometimes in court to either say something before the court or hear what the court has to say.

When Do I Have To Appear In Court During An Illinois Divorce?

Attendance in an Illinois court is only mandatory if a Notice To Appear subpoena has been issued or a previous order requests the presence of a party at the next court date.

“Any witness shall respond to any lawful subpoena of which he or she has actual knowledge, if payment of the fee and mileage has been tendered.”  Ill. Sup. Ct. R. 237(a)

Furthermore, a party must appear in court if requested.

“The appearance at the trial or other evidentiary hearing of a party or a person who at the time of trial or other evidentiary hearing is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear.” Ill. Sup. Ct. R. 237(b)

It’s really that simple. If there’s a piece of paper with a circuit clerk’s stamp on it that says “you must appear on X date,” you must appear on that date.

How Do I Keep From Having To Go To Court During An Illinois Divorce?

You need to appear in court if you’ve received a Notice To Appear or have been ordered to go to court.

The only way to get an excuse for not appearing in court is to file a motion to quash the notice to appear. Upon reviewing the objection, an Illinois divorce court may uphold the objection and relieve the party of the burden of appearing in court or the court may compel the party to come to court on a date ordered.

An Illinois court will consider whether your requested presence in court has a relevant purpose or if it was merely intended to harass you.

“Of course, the power [to order a party to appear] should only be exercised for good cause and in such manner that a party may not be subjected to harassment, oppression or hardship.” Oakview New Lenox Sch. Dist. v. Ford Motor Co., 378 NE 2d 544 – Ill: Appellate Court, 3rd Dist. 1978 (Citation Ommited)

Furthermore, an Illinois court will consider how recently the request to appear was issued, how it would impact you (cause you to be absent from your job, etc.) and if the requesting party knew of that impact.

“In determining whether noncompliance with discovery rules is unreasonable, the standard is whether the offending party’s conduct can be characterized as a deliberate and pronounced disregard both for the discovery rules and for the court. Factors to be considered include surprise to opposing counsel, prejudicial effect, diligence of opposing counsel in seeking discovery, timely objection and good faith.” Gausselin v. Commonwealth Edison Co., 631 NE 2d 1246 – Ill: Appellate Court, 1st Dist., 6th Div. 1994

The burden is on the non-appearing party to prove that their absence on the court date was reasonable.

“[T]he burden is on the offending party to show that its noncompliance with a Rule 237 notice was reasonable or the result of extenuating circumstances.” Government Employees Ins. Co. v. Campbell, 781 NE 2d 639 – Ill: Appellate Court, 1st Dist., 4th Div. 2002

If an Illinois court finds that you must appear, that Illinois court’s decision will stand and must be followed.

“Compelling the appearance of a party at trial is a matter for the sound discretion of the trial court, and the court’s power to order a party to appear should only be exercised for a good cause and in such a manner that a party may not be subject to harassment, oppression, or hardship.” Pickering v. Owens-Corning Fiberglas Corp., 638 NE 2d 1127 – Ill: Appellate Court, 5th Dist. 1994

What Happens If I Don’t Appear In Court During My Illinois Divorce?

Upon finding that there was a willful and contumacious failure to appear before the court, an Illinois court has the power to impose some kind of penalty.

“Upon a failure to comply with the notice, the court may enter any order that is just, including any sanction or remedy provided for in Rule 219(c) that may be appropriate.”  Ill. Sup. Ct. R. 237

A court’s possible penalties can include dismissing a party’s pleadings or finding the party in default. This is usually an inappropriate sanction, however.

“The purpose of imposing sanctions under Supreme Court Rule 219(c) is to compel cooperation rather than to dispose of litigation as a means of punishing the noncomplying party. The court may not invoke sanctions which are designed to impose punishment rather than to achieve or effect the objects of discovery. In addition, sanctions are to be imposed only when noncompliance with discovery rules or orders is found to be unreasonable and the order entered is just. A just order is one which, to the degree possible, insures both discovery and a trial on the merits. A default judgment entered as a sanction for noncompliance with discovery rules or orders under Rule 219(c) should be set aside when a trial on the merits may be held without visiting hardship or prejudice on the parties.” CEDRIC SPRING & ASSOC., INC. v. NEI CORP., 402 NE 2d 352 – Ill: Appellate Court, 2nd Dist. 1980

So, failure to appear means the trial will go on…just without you. That means the opposing side must still prove their allegations via their own testimony and exhibits. You don’t just forfeit the entire case because of your absence.

If your testimony is deemed to be essential, it is possible for an Illinois court to find you in direct contempt of court and to issue a body attachment to ensure your presence courtesy of the local sheriff.

The moment the appearance in court occurs, the body attachment will be quashed. “[Order violators] are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)

If the court deems it inappropriate in light of your past non-compliance, you may not return to court later to present your side of the case or have your lawyer present your case in your absence.

“Supreme Court Rule 219(c) states that failure to comply with a Rule 237(b) notice may include an order barring the offending party from presenting any evidence or witnesses.” Government Employees Ins. Co. v. Smith, 824 NE 2d 1087 – Ill: Appellate Court, 1st Dist. 2005

As with any violation of a court’s rules or orders, the violator may be ordered to pay the other side’s attorney’s fees for expenses that occurred in relation to the enforcements of said orders and rules.

“If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party…to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees”, Ill. Sup. Ct. R. 219(a)

If you’ve received a Notice To Appear, you must appear in court and you must be ready for the questions you will be asked in court. Failure to do so can have severe consequences. Contact my Chicago, Illinois family law firm to learn more about how you can appear in court at a time where you can be available and prepared.