There are a variety of initial divorce documents which you must prepare to initiate an Illinois divorce. A Petition For Dissolution Of Marriage outlines all of the broad details of your divorce; you were married, had some children, own some marital property and now you want a divorce, a parenting schedule and a division of that marital property. Attached to the Petition For Dissolution of Marriage is a document called a summons.
What Is A Summons?
In the old days, before everyone could read and write, the summons was the most important part of a lawsuit. It told a party to a lawsuit that they must be present at a certain place and a certain time in order to face justice.
For example, The Holy Roman Emperor issued Martin Luther a summons so Martin Luthor could appear before the Emperor so Martin could renounce his new invention, Protestantism. Martin Luther argued that he was not a heretic and then subsequently escaped before the Emperor could issue his decision. Martin Luther’s prompt appearance per the summons was seen as evidence of his courage and flawless character. The people rallied to Martin Luther’s side because of the appearance and the Emperor “forgot” about the arrest warrant that he issued after Martin Luther’s trial.
The lesson here is that it pays to cooperate even when you know you are going to get into trouble.…but I digress.
The summons still exists with us today because notice is a fundamental concept of justice. You need to be informed of what you are accused of in advance of any hearing and/or judicial decision.
What Is a Summons In Illinois
Today, in Illinois divorce, a summons is like a one page instruction manual for whoever receives a divorce petition. In fact, a summons is a one-line instruction manual and that line is in bold on the face of the summons: “YOU ARE SUMMONED and required to file your written appearance and response no later than 30 days not counting service”
That’s it. That’s all a summons does in an Illinois divorce. A summons gives formal notice to the Respondent at the moment of service of the Respondent’s next step: filing an Appearance.
“The purpose of a summons is to ‘notify a party that an action has been commenced against him.” In re Application of the County Treasurer & Ex Officio County Collector, 307 Ill. App. 3d 350, 355 (1999)
“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)
This is important because “[w]here the trial court does not have personal jurisdiction over a party, any order against him is void” Department of Healthcare & Family Services ex rel. Hodges v. Delaney. 2021 IL App (1st) 201186
“The summons shall be issued under the seal of the court, identifying the name of the clerk. The summons shall clearly identify the date it is issued, shall be directed to each defendant, and shall bear the information required by Rule 131(d) for the plaintiff’s attorney or the plaintiff if not represented by an attorney. All summons issued in civil cases in Illinois must contain the following language:
E-filing is now mandatory for documents in civil cases with limited exemptions. To efile, you must first create an account with an e-filing service provider. Visit http://efile.illinoiscourts.gov/service-providers.htm to learn more and to select a service provider. If you need additional help or have trouble e-filing, visit http://www.illinoiscourts.gov/FAQ/gethelp.asp, or talk with your local circuit clerk’s office.” Ill. Sup. Ct. R. 101(a)
The summons even includes a warning regarding what will happen to the Respondent in receipt of the summons if they do not file their appearance: “If you fail to file your written appearance within the time stated above, a default judgment may be entered against you and the court may grant the petitioner all or part of the relief that s/he is requesting in his or her petition”
The relief requested will be in the second half of the Petition For Dissolution Of Marriage. If you do not file your appearance per the summons’ warning, the Petitioner will file a Motion For Default and without your rebuttal testimony will likely get everything they asked for in their divorce petition…whether you like it or not.
Divorce Summonses in Illinois also must include additional warnings regarding what the litigants CANNOT do during the course of their divorce case.
“Summons in Cases under the Illinois Marriage and Dissolution of Marriage Act. In all proceedings under the Illinois Marriage and Dissolution of Marriage Act, the summons shall include a notice on its reverse side referring to a dissolution action stay being in effect on service of summons, and shall state that any person who fails to obey a dissolution action stay may be subject to punishment for contempt, and shall include language:
(1) restraining both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party; and
(2) restraining both parties from concealing a minor child of either party from the child’s other parent. The restraint provided in this subsection (e) does not operate to make unavailable any of the remedies provided in the Illinois Domestic Violence Act of 1986.” Ill. Sup. Ct. R. 101(e)
If the form of the summons gets screwed up that error will not ruin the underlying divorce case.
“The use of the wrong form of summons shall not affect the jurisdiction of the court.” Ill. Sup. Ct. R. 101(g)
“In determining whether a summons was sufficient to provide the opposing party with notice of the action ‘we adhere to the principle that a court should not elevate form over substance, but should construe a summons liberally.’ ” MI Management, LLC, 2018 IL App (1st) 160972, ¶ 39 (quoting In re Application of the County Treasurer, 307 Ill. App. 3d at 355)
How Do You File And Serve A Summons In An Illinois Divorce?
“Actions for dissolution of marriage or legal separation shall be commenced as in other civil cases or, at the option of petitioner, by filing a praecipe for summons with the clerk of the court” 750 ILCS 5/411(a)
A “praecipe” is a latin word for “command.” Filing a “praecipe for summons” just means filing the summons with the court to make the summons part of the formal court record.
“After the filing of the petition, 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)
Honestly, I’m not sure why it says “2 day” in the statute…because no summons has ever been served that quickly. But the Illinois Supreme Court Rules which were referred to tell us how to serve the summons.
“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.” Illinois Supreme Court Rule 102
So, a Petitioner has the option of hiring either the Sheriff or…someone else when serving the Respondent.
The Illinois civil procedure statute gives us some direction as to who we can hire for service.
“Process shall be served by a sheriff” 735 ILCS 5/2-202(a)
If you choose not to hire the Sheriff to serve the divorce papers, then you must appoint and hire a private detective agency to serve the divorce papers.
“Upon motion and in its discretion, the court may appoint as a special process server a private detective agency” 735 ILCS 5/2-202(b)
I don’t walk into a dark smoke-filled room with one spinning fan to hire a “detective” to serve my clients’ spouses. Rather, I just call up my private process server after I’ve had the court appoint her per the statute. My private process server is a nice middle-aged lady with a detective’s license. The Respondents never see her coming.
Does A Divorce Summons In Illinois Require The Respondent To Come To Court?
No. The divorce summons is not like other civil summonses with a date and time of court where you must be present. The only thing that is required is that the Respondent file an Appearance. The only way to file an Appearance in most Illinois counties is to file an Appearance on-line. So, a divorce summons in Illinois actually summons nothing.
If you’ve just gotten an Illinois divorce summons or you’re struggling with preparing your initial Illinois divorce documents, call up my Chicago, Illinois family law firm and speak with an experienced Chicago divorce lawyer.
