Posted on October 2, 2021

What Is A Motion To Vacate In An Illinois Divorce?

Illinois courts make decisions. Someone is always going to be displeased with a court’s decision. There are multiple ways to make your displeasure known with a court. You can file a motion to reconsider to tell the judge they made the wrong decision. You can file an appeal to tell a set of superior judges that the circuit judge made the wrong decision. Or, you can file a motion to vacate the order telling the judge “you shouldn’t have a made that decision at all”

What makes a court order subject to a motion to vacate in an Illinois divorce court?

Vacating An Illinois Divorce Judgment.

Any final order or judgment can be vacated in Illinois. Within 30 days of the entry, the order or judgment can be vacated for almost any reason.

“The court may, in its discretion…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)

“When ruling on a motion to vacate, the predominant concern is whether substantial justice is being done between the parties and whether it is reasonable under the circumstances to proceed to trial on the merits.” Larson v. Pedersen, 349 Ill. App. 3d 203, 207-08 (2004).

Just as a judgment should be dismissed if the judgment was not fair, a judgment’s dismissal should also not be unfair.

“The guiding principle is to prevent dismissal when it would be unfair, unjust, and inequitable.” Mann v. Upjohn Co., 324 Ill. App. 3d 367, 377 (2001).

After 30 days the requirements for vacating an order or judgment are considerably more stringent.

“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section…All relief…shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.” 735 ILCS 5/2-1401

When a section 2-1401 petition is filed, “the circuit court may (1) dismiss the petition; (2) grant or deny the petition solely on the pleadings or enter summary judgment; or (3) grant or deny the petition following an evidentiary hearing.” Tuna v. Airbus, S.A.S., 2017 IL App (1st) 153645

A motion to vacate is going to receive a full evidentiary hearing unless the motion to vacate is defective on it’s face.

A 2-1401 “petition should not be dismissed unless it is clear that the petitioner could never prove any set of facts entitling him to relief.” Tuna v. Airbus, S.A.S., 2017 IL App (1st) 153645

“[W]hen the facts supporting the section 2-1401 petition are challenged by the respondent, a full and fair evidentiary hearing should be held.” Warren County Soil & Water Conservation District, 2015 IL 117783, ¶ 51

At the hearing on the motion to vacate, it is the filer of the motion to vacate’s burden to prove their case “by a preponderance of the evidence in order to obtain relief.” Tuna v. Airbus, 2017 IL App (1st) 153645, ¶ 32.

The power to set aside a judgment and grant a litigant their day in court “is based upon substantial principles of right and wrong and is to be exercised for the prevention of injury and [for the] furtherance of justice.'” Smith v. Airoom, 114 Ill.2d at 225, 102 Ill.Dec. 368, 499 N.E.2d 1381(Quotations Omitted)

The first consideration when vacating a judgment is determining whether the judgment was void or merely voidable.

Void Judgments In An Illinois Divorce

If an order is void, that order can be vacated at any time without any statute of limitations or other underlying basis that the order was bad. A void order simply didn’t allow the Respondent to have due process.

“A void order is a complete nullity from its inception and has no legal effect.” Herrera v. Herrera, 2021 IL App (1st) 200850

There are two bases upon which an order may be found to be void: 1) lack of subject matter jurisdiction and 2) lack of personal jurisdiction

“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.In re Marriage of Verdung, 535 NE 2d 818 – Ill: Supreme Court 1989

“”[S]ubject matter jurisdiction” refers to the power of a court to hear and determine cases of the general class to which the proceeding in question belongs.” Belleville Toyota v. Toyota Motor Sales, 199 Ill. 2d 325, 334 (Ill. 2002)

“[A] circuit court’s subject matter jurisdiction is conferred entirely by our state constitution.” Belleville Toyota v. Toyota Motor Sales, 199 Ill. 2d 325, 334 (Ill. 2002)

Under section 9 of article VI of the Illinois Constitution, that jurisdiction extends to all “justiciable matters.” Ill. Const. 1970, art. VI, § 9

“Generally, a “justiciable matter” is a controversy appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of parties having adverse legal interests.” Belleville Toyota v. Toyota Motor Sales, 199 Ill. 2d 325, 335 (Ill. 2002)

“The court’s authority to exercise its jurisdiction and resolve a justiciable question is invoked through the filing of a complaint or petition.” Ligon v. Williams, 264 Ill. App. 3d 701, 707 (Ill. App. Ct. 1994)

If the Petition For Dissolution Of Marriage is valid and meets all the requirements for a Petition For Dissolution of Marriage, the subject matter jurisdiction requirement will be satisfied and any Judgment for Dissolution of Marriage will be valid on those grounds.

Personal jurisdiction is the court having authority over the party to the lawsuit.

“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

“The object of service of process is to notify a party of pending litigation and thus secure his presence.” In re Marriage of Wilson, 150 Ill. App. 3d 885, 887 (Ill. App. Ct. 1986)

“Serving a copy of a summons and complaint on a party-defendant is an essential part of the litigation process and allows a court to obtain personal jurisdiction over that defendant.” Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773, ¶ 18. “If a party is not properly served with summons, the trial court does not obtain personal jurisdiction over that party.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367 (2001)

If the party was served personally, personal jurisdiction has been achieved.

[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).

The served spouse cannot deny they were served in order to remove personal jurisdiction without some kind of additional evidence. A denial of having been served without corroborating evidence “offers nothing that approaches the kind of substantial and competent evidence necessary to impeach the return of service.” Charles Austin, LTD. v. A-1 Food Services, 2014 IL App (1st) 132384

Furthermore, any filing by a party contesting personal jurisdiction EXCEPT a motion to contest personal jurisdiction shall qualify as acceptance of service.

“A party filing any other pleading or motion prior to the filing of a motion objecting to the court’s jurisdiction over the party’s person as set forth in subsection (a) waives all objections to the court’s jurisdiction over the party’s person prospectively” 735 ILCS 5/2-301(a-6)

“[A] petitioner or plaintiff submits to the jurisdiction of the court by filing a petition or complaint, thereby seeking to be bound to the court’s resolution’ thereof.” In re M.W., 232 Ill. 2d at 426

Third parties are easily included in Illinois family law cases.

“The court may join additional parties necessary and proper for the exercise of its authority under this Act.” 750 ILCS 5/403(d)

However, only the third party can object to their own service.

“[A] party may object to personal jurisdiction or improper service of process only on behalf of himself or herself, since the objection may be waived.” In re M.W., 232 Ill. 2d 408, 427 (2009)

Most issues with service come from constructive service, however. Constructive service is where a party is served via publication because their whereabouts cannot be accurately ascertained.

“The use of constructive service demands strict compliance with the statutory requirements.” In re Marriage of Wilson, 150 Ill. App. 3d 885, 888 (Ill. App. Ct. 1986)

If a party cannot be located, the Petitioner must file an affidavit swearing that they cannot locate the Respondent with the clerk of court.

“[Petitioner] 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

This is a tall order in an age where everyone is on Facebook, LinkedIn and other social media sites.

A court must find that “upon diligent inquiry [Respondent’s] place of residence cannot be ascertained” in order to allow personal jurisdiction over that party.

A respondent could come back to court years later and say “I was down the street the entire time,” thereby void personal jurisdiction and allow a motion to vacate the judgment to be granted.

Vacating Voidable Orders In An Illinois Divorce

To better distinguish between void and voidable orders, recall that void orders are only caused by a lack of subject matter or personal jurisdiction.

“[O]nly the most fundamental defects, i.e., a lack of personal jurisdiction or lack of subject matter jurisdiction…warrant declaring a judgment void” LVNV Funding, LLC v. Trice, 32 N.E.3d 553, 563 (Ill. 2015)

Other orders might have other problems which make them voidable but those orders are not automatically void because subject matter jurisdiction or personal jurisdiction existed at the time the order was entered.

“As this court has held, whether a judgment is void or voidable presents a question of jurisdiction…A voidable judgment, on the other hand, is an erroneous judgment entered by a court that possesses jurisdiction.” LVNV Funding, LLC v. Trice, 32 N.E.3d 553, 560 (Ill. 2015)

“A voidable judgment…is an erroneous judgment entered by a court that possesses jurisdiction and is not subject to collateral attack.” Herrera v. Herrera, 2021 IL App (1st) 200850

Collateral attack is called “collateral impeachment” by Black’s Law Dictionary. “A collateral impeachment of a judgment or decree is an attempt made to destroy or evade its effect as an estoppel, by reopening the merits of the cause or by showing reasons why the judgment should not have been rendered or should not have a conclusive effect.” Black’s Law Dictionary (10th ed. 2014)

Voidable orders can be vacated but their very existence cannot be challenged via collateral attack.

“Once a court has acquired jurisdiction, an order will not be rendered void merely because of an error or impropriety in the issuing court’s determination of the law.” In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (Ill. 1998)

If personal or constructive service is found to be valid the order will be voidable on other grounds. If “the affidavit of service is voidable, rather than void, means that the dissolution judgment could not be attacked at any time. Rather, [the Respondent would be] required to comply with the requirements of section 2-1401” Herrera v. Herrera, 2021 IL App (1st) 200850

A motion to vacate on the basis of anything other than subject matter jurisdiction and personal jurisdiction requires a party to prove certain things.

“To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the section 2-1401 petition.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

These factors must be proven by a preponderance of evidence.

“The quantum of proof necessary to sustain a section 2-1401 petition is a preponderance of the evidence.” Smith v. Airoom, 114 Ill. 2d at 221

The proof should be described in an affidavit attached to the motion to vacate.

“The petition must be supported by an affidavit or other appropriate showing as to matters not of record.” 735 ILCS 5/2-1401(b)

The Existence Of A Meritorious Claim Or Defense In A Motion To Vacate In An Illinois Divorce

A meritorious defense or claim is simply whether the party trying to vacate the order had a legal basis to proceed with their claim or defend against their opponent’s claim.

“A section 2-1401 petitioner is not entitled to relief `unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.'” Kaput v. Hoey, 530 NE 2d 230 – Ill: Supreme Court 1988 (Quotations Omitted)

Most valid defenses that were not presented and could have been presented at the original hearing are based on new evidence.

“Specifically, to set aside a judgment based on newly discovered evidence, the evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

In an Illinois divorce, new evidence usually means undisclosed income or assets of the other party.

If there’s no meritorious claim, then the parties need not concern themselves with the issue of due diligence.

“If the petitioner fails to allege the existence of a meritorious defense, the petition is properly denied, and due diligence need not be addressed. However, if a meritorious defense probably exists, the court must address the issue of due diligence.” ROCKFORD FINANCIAL SYSTEMS v. Borgetti, 932 NE 2d 1152 – Ill: Appellate Court, 2nd Dist. 2010

Due Diligence In A Motion To Vacate In An Illinois Divorce

It’s not enough to say in a motion to vacate “this was unfair.” You must also present facts as to why you didn’t point out why it wasn’t unfair in the original hearing. Doing so is called proving “due diligence.”

“Due diligence requires the section 2-1401 petitioner to have a reasonable excuse for failing to act within the appropriate time. Since section 2-1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or negligence a party relying on section 2-1401 is not entitled to relief unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently, when he failed to initially resist the judgment. In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys.” Smith v. Airoom, Inc., 499 NE 2d 1381 – Ill: Supreme Court 1986 (Citations Omitted)

As you can see, due diligence in presenting the claim or defense in the original action is very much in the eye of the beholder.

Due diligence in presenting a motion to vacate is not relative at all. It must be done within 2 years of the original order’s entry.

“[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” 735 ILCS 5/2-1401(c)

Two years may not bar all motions to vacate. Most motions to vacate a divorce judgment are because secret assets have been found that were not disclosed prior to the divorce.

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.” 735 ILCS 5/13-215

A motion to vacate is a “cause of action” completely independent from the divorce. “A proceeding under section 2-1401 constitutes an independent and separate action from the original action.” Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31

So, if there was no knowledge of the need for a cause of action (a motion to vacate) fraudulent concealment can be alleged. If so, the 2-year time limit is tolled.

“[F]raudulent concealment will ‘toll’ a limitations period if a plaintiff pleads and proves that fraud prevented discovery of the cause of action.” DeLuna v. Burciaga, 223 Ill. 2d 49, 76 (2006).

To “toll” is to “stop the running of a statute of limitations.” Black’s Law Dictionary (11th ed. 2019)

Proving an undisclosed marital asset existed at the time of the divorce is not enough, however. There has to be some showing that the other party purposely concealed the asset. “A plaintiff alleging fraudulent concealment must generally show affirmative acts by the defendant that are designed to prevent the discovery of the action.” Lamet v. Levin, 2015 IL App (1st) 143105, ¶ 32 (citing Clay, 189 Ill. 2d at 613)

Again, recall that these additional steps need not be taken if the order is deemed void. “A void judgment, order, or decree may be attacked at any time or in any court either directly or collaterally, without any showing of diligence or meritorious defense” Sarkissian v. Chicago Bd. of Educ., 776 NE 2d 195 – Ill: Supreme Court 2002

The defense to a motion to vacate is to claim that your opponent is trying to relitigate his case after losing.

“[A] section 2-1401 petition is not to be used as a device to relitigate issues already decided or to put in issue matters which have previously been or could have been adjudicated.” In re Marriage of Halas, 173 Ill. App. 3d 218, 223 (1988)

Motions to vacate are not taken lightly. Courts demand attention to one’s own case.

“A party must follow the progress of its case, and a section 2-1401 petition will not relieve a party of the consequences of its attorney’s neglect of a matter.” R.M. Lucas Co. v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102955, ¶ 18

Dismissing A Motion To Vacate

Motions to vacate will be subject to motions to dismiss. “A proceeding under section 2-1401 constitutes an independent and separate action from the original action.” Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. “Section 2-1401 petitions are essentially complaints inviting
responsive pleadings.” People v. Vincent, 226 Ill. 2d 1, 8 (2007)
. “A motion to dismiss a section 2-1401 petition is reviewed under the same standards as any motion to dismiss a pleading.” In re Marriage of Lyman, 2015 IL App (1st) 132832, ¶ 57

If a meritorious defense and due diligence are not properly alleged in a motion to vacate, the motion to vacate will be dismissed.

“It is not sufficient for the petition and supporting affidavit to merely assert the existence of a meritorious defense…without also pleading the relevant facts supporting the alleged defense.” People ex rel. McGraw v. Mogilles, 136 Ill. App. 3d 67, 73 (1985)

“A petition brought under section 2-1401 must set forth affirmative allegations of fact which establish the existence of (1) a specified meritorious defense, (2) the exercise of due diligence in presenting the defense to the court in the underlying litigation and (3) diligence in bringing the section 2-1401 petition to vacate the judgment” Gruss v. Beverley, 201 Ill. App. 3d 502, 508 (Ill. App. Ct. 1990)

Motions to vacate a divorce are often based on the allegation that something was missing or hidden without specifying what is missing and/or hidden. Rather, the party requesting that the order be vacated is asking for the opportunity to conduct a second investigation based on mere “information and belief.” This speculation is not a properly pled fact but a mere conclusion and is not sufficient to maintain a motion to vacate.

“[G]ratuitous allegations are bare conclusions of law. Mere conclusions are not treated as true for the purpose of a petition for post-judgment relief and are not sufficient to warrant such relief.” Molden v. Reid, 200 Ill. App. 3d 495, 500 (Ill. App. Ct. 1990)

When you are filing a motion to vacate you must admit two things 1) That you were wrong AND 2) This time you are right. This takes an incredible combination of humility and confidence for a judge to grant a motion to vacate in an Illinois divorce. Make sure you have an attorney who can project those values to an Illinois divorce judge.

Contact my Chicago, Illinois family law firm today to speak with an experienced Chicago divorce lawyer.

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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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