In order to properly start and, eventually, finalize an Illinois divorce, both parties must have proper notice of the divorce proceedings. This requirement of notice is called “due process” and is fundamental to the entire American legal system.
“No state shall make or enforce any law…without due process of law” U.S. Const., amend. XIV
“At a minimum, due process requires that a deprivation of property cannot occur without providing notice and an opportunity for a hearing appropriate to the nature of the case.” In re Marriage of Beyer and Parkis, 753 NE 2d 1032 – Ill: Appellate Court, 1st Dist., 1st Div. 2001
In an Illinois divorce, notice of the divorce proceedings is provided by service of the petition for dissolution of marriage accompanied by a summons.
The petition for dissolution of marriage says “you are getting divorced.”
“After the filing of the petition [for dissolution of marriage], the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411(b)
The summons says, “here is what you must do to participate in the divorce proceedings”
“[T]he summons shall require each defendant to file his answer or otherwise file his appearance within 30 days after service” Ill. Sup. Ct. R. 101(d)
A spouse who does not want to get divorced or (more likely) does not want to face the consequences of the divorce process (child support, maintenance and division of marital assets) will avoid being served the petition for dissolution of marriage and the accompanying summons.
If there is no personal service, there is no binding orders against the person who was not served.
“If a party is not properly served with summons, the trial court does not obtain personal jurisdiction over that party. Where a trial court does not have personal jurisdiction over a party, any order entered against him is void ab initio and subject to direct or collateral attack at any time.” In re Marriage of Schmitt, 747 NE 2d 524 – Ill: Appellate Court, 2nd Dist. 2001
What Do You Do If A Spouse Is Avoiding Service In Illinois?
Many people hire the sheriff to serve their spouse Illinois divorce papers.
“Promptly upon issuance, summons (together with copies of the complaint as required by Rule 104) shall be placed for service with the sheriff or other officer or person authorized to serve process.” Ill. Sup. Ct. R. 102(a)
The sheriff has bad guys to chase down and lock up. So, the sheriff may not be prioritizing serving your spouse. Virtually every Illinois divorce lawyer skips hiring the sheriff and, instead, appoints a special process server.
“The court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action.” 735 ILCS 5/2-202(a)
The special process server will go to your spouse’s house, place of business, or a special event where they know your spouse is likely to appear (I once served a husband at his daughter’s graduation).
The process server usually just needs someone at the house of the spouse to accept the divorce papers.
“[S]ervice of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards” 735 ILCS 5/2-203(a).
If the reluctant divorcee refuses to open their door and only leaves their house in their car from the garage…even a special process server will not be able to serve them.
In such a case, service can still be made by leaving the papers somewhere the reluctant divorcee will find them (with a relative or at their job)…but you need to ask permission first.
“If service upon an individual defendant is impractical…the plaintiff may move, without notice, that the court enter an order directing a comparable method of service.” 735 ILCS 5/2-203.1
The motion for alternative service must be very detailed for the court to allow alternative or substitute service.
“The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical…including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful.” 735 ILCS 5/2-203.1
If the motion is granted, the court will tell you how you can serve the respondent (leave the papers at their work, certified mail, or even email).
“The court may order service to be made in any manner consistent with due process.” 735 ILCS 5/2-203.1
The notice required by due process is that which is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford then an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 US 306 – Supreme Court 1950
For example, “service upon an employee [would be] sufficient to convey notice to respondent. In other words, it is reasonable to believe that an employee would advise his employer that he had been served on the employer’s behalf.” In re Marriage of Schmitt, 747 NE 2d 524 – Ill: Appellate Court, 2nd Dist. 2001
Sooner or later, your spouse will be served…and the divorce judge will be annoyed by the delay.
Don’t be afraid to remind the judge that resisting or obstructing service is a crime in Illinois.
“Whoever knowingly resists or obstructs the authorized service or execution of any civil or criminal process or order of any court commits a Class B misdemeanor.” 720 ILCS 5/31-3
Class B Misdemeanors in Illinois may involve maximum jail time of up to 180 days and fines up to $1500.
How Do You Serve A Spouse You Cannot Locate?
If you know where your spouse is…you have to serve them personally to begin the Illinois divorce process.
If your spouse has disappeared, you can serve your spouse by publication.
“[P]laintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending.” 735 ILCS 5/2-206
In the year 2023, it is hard to imagine a “diligent inquiry” that would not be able to locate a spouse. There are numerous internet services which will gladly sell you anyone’s location.
“[S]ervice by publication on a nonresident completes the requirements for in rem jurisdiction” In re Marriage of Brown, 154 Ill. App. 3d 179, 182 (Ill. App. Ct. 1987)
“In rem jurisdiction” means the court has jurisdiction over the marriage but not the other party.
An Illinois court can grant a divorce if the court has in rem jurisdiction over the marriage but the court cannot order the other party to pay child support, alimony or turn over marital assets.
However, people who truly disappear usually aren’t very good at paying child support, alimony or saving assets which could have been divided.
If you are having difficulties serving your spouse divorce papers in Illinois…I am sure they will be even more annoying when they finally appear in court. Contact my Chicago, Illinois family law firm to discuss service and the eventual prosecution of your Illinois divorce with an experienced Illinois divorce attorney.
