Posted on June 25, 2022

What If My Spouse Doesn’t Want A Divorce In Illinois?

Divorce is a tough decision for one person to make…but only one person needs to decide to get divorced. If the other spouse doesn’t want a divorce, there is very little they can do to prevent the divorce from happening in Illinois.

The Right To Divorce In Illinois

“The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State…and the residence…had been maintained for 90 days next preceding the commencement of the action” 750 ILCS 5/401(a)

That’s it! 90 days in Illinois and the court must grant you a divorce.

If you do not have 90 days in Illinois yet, an Illinois court must shall still grant a divorce upon the “making of the finding: Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)

These are extremely low bars to exercise an individual’s right to demand a divorce in Illinois. So, if one party wants to get a divorce in Illinois, that divorce is going to happen.

Slowing Down A Divorce In Illinois

Just because one spouse has the right to divorce in Illinois doesn’t mean that the other spouse automatically and immediately accedes to all of the divorce-related demands. Divorces in Illinois take time…especially when the parties disagree as to the terms of the Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities.

To adequately complete a Marital Settlement Agreement, each party must engage in discovery to include all assets and/or debts to be distributed and calculate support according to each parties’ income.

Confirming those assets/debts and incomes requires discovery.

“Information is obtainable [through discovery] through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.”  Ill. Sup. Ct. R. 201(a)

Discovery takes a long time if either party cares to issue discovery and the other party does not respond to discovery promptly and completely.

What takes even more time is when children’s issues are not agreed in an Illinois divorce.

If the parties to an Illinois divorce have children, the divorce will not be entered until all the issues regarding the children are granted or reserved.

“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” 750 ILCS 5/401(b)

Guardian Ad Litems or Child Representatives, lawyers who represent the children in an Illinois divorce must be appointed and allowed to perform a full investigation to make recommendations that are in the best interests of the child.

Even after all the discovery is complete and all the children’s lawyers have issued reports, the parties still may not be agreed and can ask for a trial date…which will occur months later.

A reluctant divorcee-to-be, can make a divorce take a long time…and cost a lot of money.

A Spouse Who Doesn’t Want To Get Divorced In Illinois But In Another State

Some spouses won’t object to getting divorced so much as they object to getting divorced in Illinois. That spouse may object to Illinois having jurisdiction over their divorce.

“In order to have a valid judgment the court must have both jurisdiction over the subject matter of the litigation and jurisdiction over the parties. 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

Just because a spouse is served with a summons for an Illinois divorce does not mean that they must participate in the Illinois divorce process. That spouse might not have any real contacts with Illinois that warrant Illinois jurisdiction over them, personally.

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the [state], he have certain minimum contacts with [the state]” International Shoe Co. v. Washington, 326 US 310 – Supreme Court 1945

By filing a special appearance to contest jurisdiction, a spouse can ask that an Illinois divorce case be dismissed for lack of jurisdiction over them, personally.

“Prior to the filing of any other pleading or motion other than as set forth in subsection (a-6), a party may object to the court’s jurisdiction over the party’s person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process, by filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a motion to quash service of process.” 735 ILCS 5/2-301(a)

Then, the objecting-to-jurisdiction spouse must argue that they have done none of the following actions within the borders of Illinois.

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

(5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;

(6) With respect to actions brought under the Illinois Parentage Act of 1984,  1 as now or hereafter amended, or under the Illinois Parentage Act of 2015   2 on and after the effective date of that Act, the performance of an act of sexual intercourse within this State during the possible period of conception;

(7) The making or performance of any contract or promise substantially connected with this State;

(8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;

(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State;

(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;

(11) The breach of any fiduciary duty within this State;

(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;

(13) The ownership of an interest in any trust administered within this State; or

(14) The exercise of powers granted under the authority of this State as a fiduciary.” 735 ILCS 5/2-209(a)

Even if an Illinois divorce is successfully dismissed for lack of personal jurisdiction over the other spouse, the Illinois spouse can still file for divorce in the other spouse’s state and proceed under that state’s divorce rules.

A spouse that doesn’t want to get a divorce in Illinois is probably better served by exploring strategies to get divorced successfully in Illinois. If you’d like fight your Illinois divorce or fight to get divorced in Illinois, contact my Chicago, Illinois family law firm to learn more about your rights both inside and outside of Illinois.

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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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