It is not enough to do something in an Illinois divorce. You also must prove that you did it…and that you did it correctly. The first step of a divorce is properly notifying the other party of the divorce via service. Verifying that you served the other party requires filing an Affidavit of Service. How do you properly file an Affidavit of Service of in an Illinois divorce?
Why Must You Serve Your Spouse In An Illinois Divorce?
The entire Anglo-American legal system is based on the concept of due process.
Due process is ensuring consistency and fairness of the “law in its regular course of administration through courts of justice.” Black’s Law Dictionary (10th ed. 2014)
Due process requires notice for all legal actions.
“The essence of due process is procedural fairness, as embodied in the elements of notice and opportunity to be heard. As long as these elements are satisfied, a party is not denied due process, even if he fails to avail himself of his opportunity to be heard.” Milenkovic v. Milenkovic, 416 NE 2d 1140 – Ill: Appellate Court, 1st Dist. 1981
Every filed Illinois divorce requires that the other party (the respondent) either file their own appearance or be formally served with the divorce documents (the Petition For Dissolution of Marriage and the Summons)
“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
50% of divorces require nothing more than a polite email informing the other spouse that a divorce has been filed and they should seek independent counsel to file their appearance in the pending divorce matter.
Some divorce respondents are not eager to engage in the formal divorce process. The non-cooperative ex-spouse-to-be must be served in order for the divorce process to proceed.
How To Serve A Spouse In An Illinois Divorce
“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
There are 3 ways to serve a respondent in an Illinois divorce: 1) personal service, 2) substitute service, 3) service by special order of the court.
Personal service is simple. Just hand the summons to the respondent (or throw it in their general direction)
“[S]ervice of summons upon an individual defendant shall be made…by leaving a copy of the summons with the defendant personally” 735 ILCS 5/2-203(a)(1)
Substitute service is completed “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, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode.” 735 ILCS 5/2-203(a)(2)
Service by special order of the court is an option when neither personal nor substitute service could be achieved.
“If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of 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 under items (1) and (2) of subsection (a) of Section 2-203, 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. The court may order service to be made in any manner consistent with due process.” 735 ICLS 5/-203.1
In 2023 (and years subsequent), service by special order will inevitably be service by email, social media or text.
“Upon motion brought pursuant to Section 2-203 .1 of the Illinois Code of Civil Procedure, the court may order service of summons and complaint to be made in a manner consistent with due process and subject to provisions of this paragraph.
(1) If the court is satisfied that the defendant/respondent has access to and the ability to use
the necessary technology to receive and read the summons and documents electronically, the
following alternative methods of service or combination of methods of service may be ordered
by the court when granting a motion brought pursuant to Section 2-203 .1 of the Illinois Code
of Civil Procedure (735 ILCS 5/2-203.1).
(A) Service by social media. Service by social media shall be made by (i) sending a
direct message to the defendant/respondent on a social media platform on which the
defendant/respondent has an active profile; (ii) attaching a copy of the summons,
complaint/petition, and any other required documents to the direct message; and
(iii) stating in the body of the direct message: “Important information-You have been
sued. Read all of the documents attached to this message. To participate in the case, you
must follow the instructions listed in the attached summons. If you do not the court may
decide the case without hearing from you, and you could lose the case.”
(B) Service by e-mail. Service by e-mail shall be made by (i) sending an e-mail to the
defendant/respondent at his or her current e-mail address; (ii) attaching a copy of the
summons, complaint/petition, and any other required documents to the e-mail; (iii) stating
in the subject line of the e-mail message : “Important information-You are being sued”;
and (iv) stating in the body of the e-mail: “You have been sued. Read all of the documents
attached to this e-mail. To participate in the case, you must follow the instructions listed in
the attached summons. If you do not, the court may decide the case without hearing from
you. and you could lose the case.”
(C) Service by Text Message. Service by text message shall be made by (i) sending a
text message to the defendant/respondent’s cellular telephone number; (ii) attaching a copy
of the summons, complaint/petition, and any other required documents to the text message;
and (iii) stating in the body of the text message: “Important information-You have been
sued. Read all of the documents attached to this message. To participate in the case, you
must follow the instructions listed in the attached summons. If you do not, the court may
decide the case without hearing from you, and you could lose the case.” Ill. Sup. Ct. R. 102(f)
All of these forms of service require that proof of service be filed with the Illinois divorce court.
Affidavit Of Service In An Illinois Divorce
Service requires the person who served the party to file an affidavit attesting to the details of the service. The statute refers to the service processer as an “officer” because it is presumed the sheriff was hired to serve the respondent.
All service requires a description of who was served and where they were served (so you can mail them subsequent notice).
“The officer, in his or her certificate or in a record filed and maintained in the Sheriff’s office, or other person making service, in his or her affidavit or in a record filed and maintained in his or her employer’s office, shall (1) identify as to sex, race, and approximate age the defendant or other person with whom the summons was left and (2) state the place where (whenever possible in terms of an exact street address) and the date and time of the day when the summons was left with the defendant or other person.” 735 ILCS 5/2-203(b)
Substitute service requires an additional affidavit testifying that the person served is over 13, a member of the family, lives where the respondent is known to live, was told it was a divorce summons and that the summons was mailed to the location in addition to the service.
“[W]here personal jurisdiction is based upon substituted service of a summons, the return or affidavit of service must affirmatively state (1) that a copy of the summons was left at the usual place of abode of the defendant with some person of the family of the age of 13 years or upwards, (2) that such family member was informed of the contents of the summons, and (3) that the officer or other authorized person making service sent a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his usual place of abode.” State Bank of Lake Zurich v. Thill, 497 NE 2d 1156 – Ill: Supreme Court 1986
Service by special order also requires an affidavit of service detailing how the email, text message or social media message was sent.
The person serving defendant/respondent pursuant to special order of court shall file a proof of service as directed by the court. If service is by social media, e-mail, or text message as described in paragraph (f)( 1). the proof of service shall contain, at a minimum, the following:
(A) The details of how service was made, including the date service was made; the identity of the social media platform, cellular telephone number, and/or e-mail address used; the address of defendant’s/respondent’s last known residence; that a copy of the summons, complaint/petition, and any other required documents were attached to the message; and the date on which a copy of the summons, complaint/petition, and any other required documents were mailed to defendant’s/respondent’s last known residence; and
(B) A screen print of the social media direct message, a copy of the sent e-mail transmission. a screen print of the text message. and/or any other evidence of proof of service the court determines to be equivalent.” Ill. Sup. Ct. R. 102(f)
Once an affidavit or service is filed, the contents of that affidavit of service is presumed true until someone files an affidavit contesting service or provides personal testimony that they were not served.
“[T]he affidavit of service is evidence which may be overcome only by a contradictory affidavit or personal testimony.” State Bank of Lake Zurich v. Thill, 497 NE 2d 1156 – Ill: Supreme Court 1986
The process server will then provide evidence that they, in fact, did serve the respondent. A process server is a third party who has no stake in the outcome of the divorce. The divorce judge is going to believe the process server’s testimony. The only way to contradict a special process server’s testimony is to prove mistaken identity in personal service or a mistaken address in substitute service.
If someone is found to have lied on an affidavit of service, they will be found in contempt of court and be liable for all the attorney’s fees involved in resolving the improper service.
“Any person who knowingly sets forth in the certificate or affidavit any false statement, shall be liable in civil contempt. When the court holds a person in civil contempt under this Section, it shall award such damages as it determines to be just and, when the contempt is prosecuted by a private attorney, may award reasonable attorney’s fees.” 735 ILCS 5/2-203(c)
When the service is contested and found lacking, the respondent must be served all over again (but properly).
In an Illinois divorce, all the little details matter, including the seemingly perfunctory affidavit of service. If you need to hire a lawyer who knows every last detail required in an Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.