Disappearing spouse in an Illinois divorce

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 If My Spouse Disappears During Our Illinois Divorce?

Disappearing spouse in an Illinois divorce

An Illinois divorce court has enormous powers…so long as the court can enforce those powers. It is very difficult to enforce an Illinois court order when one of the parties has left Illinois or the United States of America. What happens when a spouse leaves or threatens to leave Illinois or the United States of America? Can an Illinois court keep them in Illinois? What happens if a spouse disappears?

Ne Exeat Or Forbidding A Spouse From Leaving The State or Country

If a spouse is threatening to move to another place or country to avoid dealing with their pending Illinois divorce, an Illinois divorce can keep them from leaving.

“A court has a duty, as well as power, to protect its jurisdiction over a controversy in order to decree complete and final justice between the parties.  For example, section 16-101 of the Illinois Code of Civil Procedure (the Code) provides that a writ of ne exeat republica may be granted in cases where a judgment debtor may leave the jurisdiction and take his property with him. 735 ILCS 5/16-101 (West 1994). In fact, this remedy has been used in divorce cases before. To warrant the issuance of such a writ there must be a probable or threatened departure of the defendant from the state or the country, with intent to evade jurisdiction.” In re Marriage of Gurda, 711 NE 2d 339 – Ill: Appellate Court, 1st Dist., 6th Div. 1999 (Citations Ommitted)

“Ne Exeat” is “a Latin phrase for a court order that forbids a person involved in a legal matter to leave the country or state where the court has jurisdiction.” Black’s Law Dictionary (10th ed. 2014)

“Relief by ne exeat republica may be granted, in cases where the debt or claim is not actually due, but exists fairly and bona fide in expectancy at the time of making application, and in cases where the claim is due; and it is not necessary, to authorize the granting of such relief by ne exeat, that the applicant show that his or her debt or claim is purely of an equitable character.” 735 ILCS 5/16-101

The United States Supreme Court has ruled that you cannot restrict someone’s ability to travel to another state (practically, how could you? There’s not a border guard at Indiana)

“The constitutional right of interstate travel is virtually unqualified.”  Califano v. Torres, 435 U. S. 1, 4 n. 6. (Citations Ommitted)

However, a court can restrict a party’s ability to travel overseas.

“By contrast the `right’ of international travel has been considered to be no more than an aspect of the `liberty’ protected by the Due Process Clause of the Fifth Amendment. As such this `right,’ the Court has held, can be regulated within the bounds of due process.” Califano v. Torres, 435 U. S. 1, 4 n. 6. (Citations Ommitted)

So, a court can seize a party’s passport upon motion from the other party until the divorce is resolved.

But, they don’t ask for a US Passport to enter into another country, if you have another passport due to dual citizenship. You only need a U.S. passport to get back into the United States.

Defaulting A Spouse After A Disappearance During an Illinois Divorce

If a spouse does disappear during an Illinois divorce, this fact can be brought to the judge’s attention.

If the disappeared spouse has been personally served before they disappeared, the divorce can proceed in full without the disappeared spouse.

“Judgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” 735 ILCS 5/2-1301(d)

The court will still require you to prove your case, establish that you are the primary parent, should keep the marital assets, be paid alimony and/or child support. But, if there is no one to rebut your testimony, that should be very easy.

If the disappeared spouse has filed an appearance but refuses to participate in the divorce due to their disappearance, their lack of participation eventually must result in a default order even though that’s the most extreme result possible.

“[A] sanction which results in a default judgment are drastic sanctions to be invoked only in those cases where the party’s actions show a deliberate, contumacious or unwarranted disregard of the court’s authority.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)

Upon defaulting a spouse, the party defaulting must provide notice to the defaulted spouse.

“Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party’s attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity or effect of the order.” 735 ILCS 5/2-1302

If the spouse has truly disappeared, then it will be impossible to provide notice of the default…but it shouldn’t affect anything.

If the disappeared spouse reappears within 30 days of the default, the disappeared spouse can request that the default be set aside.

“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 the disappeared spouse was NOT served before their disappearance, the disappeared spouse can be served via publication.

The Petitioner to a divorce must swear they cannot find the disappeared spouse.

“[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

The disappeared spouse must be impossible to serve and you have to prove that impossibility to the Illinois divorce judge.

“[I]n no case of default shall the court grant a dissolution of marriage or legal separation or declaration of invalidity of marriage, unless the judge is satisfied that all proper means have been taken to notify the respondent of the pendency of the suit. Whenever the judge is satisfied that the interests of the respondent require it, the court may order such additional notice as may be required.” 750 ILCS 5/405

Divorce with notice via publication results in “in rem” jurisdiction.

“In rem” is Latin for “the thing.” The actual marriage is the only thing the jurisdiction the Illinois divorce court has jurisdiction over in a divorce with notice via publication. The divorce will be granted but the issues that a divorce court normally resolves, division of assets, maintenance, child support and child custody, will not be finally resolved until the party is personally served.

Of course, an Illinois court will make temporary orders regarding the children based on the best interests of the children in the absence of the other parent’s participation in the case.

If your spouse is making threats that they will leave the country to avoid your Illinois divorce, you need a Ne Exeat order entered ASAP. If your spouse has already left the country, you need to serve them in their new country or file a divorce via publication. Contact my Chicago, Illinois family law firm to learn more about how to accomplish your goals during a difficult divorce.