More about This Topic
What Is An Answer In An Illinois Divorce?
Showing up to a court date for your divorce is intimidating. Your personal life is falling apart and now you are expected to resolve the issues in a completely formal and foreign environment: divorce court. Everyone is wearing a suit. The judge is wearing a robe and sitting at an elevated podium. Your name gets called and details of your life start getting shouted about by people who don’t even know you! Finally, a judge will say something like, “You have 28 days to answer!” What is an Answer in an Illinois divorce?
Answering The Pleading: The Response To A Petition For Dissolution Of Marriage.
The initial document that starts a divorce in Illinois is called the Petition For Dissolution of Marriage. This document will be served on the Respondent unless the Respondent waives service by filing their appearance in advance of service.
The Petition For Dissolution Of Marriage will include various allegations which are necessary to establish the grounds for divorce: that the parties were married, that the parties have lived in Illinois for a certain amount of time, that the parties have irreconcilable difference between them. In addition to those fundamental allegations, the Petition For Dissolution Of Marriage will also include salient details like if the parties had children, that both parties work, that the parties own marital assets and marital debts. Finally, the Petition For Dissolution of Marriage will contain a prayer for relief: that the marriage be dissolved, that an Allocation of Parenting Time and Parental Responsibilities be entered, that maintenance be established and that marital assets and debts be allocated.
All of these allegations shall be made in a list. Each allegation shall have a number.
These allegations shall each be answered separately by the Respondent in the response or answer.
“Every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates.” 735 ILCS 5/2-610(a)
If the allegation is not answered, that allegation will be considered admitted by the Respondent.
“Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his or her pleading that he or she has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.” 735 ILCS 5/2-610(b)
If there is not sufficient knowledge on the part of the Respondent to admit or deny, the Respondent must provide an affidavit explaining that lack of knowledge. Not, surprisingly, it is easier to just provide a blanket denial of anything that is not explicitly and obviously to be admitted.
Blanket denials are encouraged, in fact.
“If a pleader can in good faith deny all the allegations in a paragraph of the opposing party’s pleading, or all the allegations in the paragraph that are not specifically admitted, he may do so without paraphrasing or separately describing each allegation denied.” Ill. Sup. Ct. R. 136(a)
Failure to answer a petition will result in the Petitioner filing a motion for default and possibly obtaining a default divorce where they will be awarded everything listed in their prayer for relief.
If an answer is filed, the Petitioner then has 21 days to further reply to the answer (this is rare in divorce).
“Replies to answers shall be filed within 21 days after the last day allowed for the filing of the answer. Any subsequent pleadings allowed or ordered shall be filed at such time as the court may order.” Ill. S. Ct. R. 182(a)
Often, a Counter-Petition For Dissolution Of Marriage will be filed by the Respondent with their own particular allegations which must, in turn, be answered by the Petitioner.
The Response To The Petition For Dissolution Of Marriage is probably the only real answer you’ll have to file in the entire divorce despite judges giving you time to answer subsequent motions. This is because a Petition For Dissolution is a pleading whereas almost all other filings in an Illinois divorce are motions.
Pleadings Versus Motions In An Illinois Divorce
A Petition is a very formal thing. A petition is an evocation of your rights under the Illinois statutes.
“A petition is a written application requesting the granting of some benefit or privilege, the performance of some duty or doing some desired act.” People ex rel. Woodward v. Bd. of Educ. of Cmty. High Sch. Dist. 408, 140 N.E.2d 22, 24 (Ill. 1923)
A petition, “consists of a party’s formal allegations of his claims or defenses” In re Marriage of Wolff, 822 N.E.2d 596, 601 (I11. App. Ct. 2005)
Once the petition is finally ruled upon, you are divorced and the case is closed.
A motion, however, is a filing in the court BEFORE the final petition is ruled upon and the case is closed.
A motion “is an application to the court for a ruling or an order in a pending case.” In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993).
Despite a motion’s seemingly “junior” nature in regards to divorce filings, the vast majority of written filings in an Illinois divorce action are motions.
Confusingly, divorce lawyers often label these motions “petitions” whose title seems to indicate a pleading. The naming has no impact on whether the filing is a motion or a pleading.
Judges can provide temporary orders based on motions that the parties must follow until the Petition is finally ruled upon. When the Petition is ruled upon and a Judgment of Dissolution Of Marriage is entered, the case is closed and all temporary orders are extinguished.
One of the best ways to distinguish a motion from a petition is by asking whether an order on the motion or petition is appealable. Motions as for temporary or other pre-judgment relief and do not state a separate claim so any order granting temporary relief is not final and, thus, not appealable.
Answer To A Motion In An Illinois Divorce
Knowing the difference between an pleading and a motion is essential to answering both types of filings.
Pleadings must answered in a very specific fashion or the allegations will be admitted and ruled upon thusly.
Motions can be answered any way you’d like. Typically, a memorandum of law should be included stating why the movant is not entitled to the temporary relief they are requesting.
A memorandum of law is not a bulleted list of admissions and denials. A memorandum of law is a story identifying the issue, the rule, the Respondent’s analysis and conclusion.
In fact, motions don’t need to be answered at all during an Illinois divorce. “[T]he failure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion but merely the right to file a response thereafter. As such, it does not allow the entry of a default judgment on the motion due to such a failure. While this rule applies in the law division of the circuit court, we can imagine no reason why it should not also apply in the other divisions of the court, including the domestic relations division.” In re Marriage of Fahy, 567 N.E.2d 552, 557 (111. App. Ct. 1991)
Still yet, judges will always offer the non-moving party time to answer the motion. The answer serves as a tool the judge will use to review when the parties finally ask the judge for a ruling via binding pre-trial or evidentiary hearing.
Whether answered or not, a movant can request an evidentiary hearing on their motion at any court date subsequent to the filing of their motion.
An evidentiary hearing is a trial limited to the issues of the motion whereupon the court will make a ruling and issue an order as to that motion. Again, this order is temporary until the Petition For Dissolution of Marriage is ruled upon and a Judgment For Dissolution of Marriage is entered.
The formalities of answering petitions do not need to be observed when it comes to motions. Illinois divorce courts need to move quickly and efficiently in order to handle the bevy of issues that litigants are constantly putting forward. So, each individual divorce judge will have their own procedures (probably unwritten) when it comes to motions.
“[T]he trial court possesses the inherent authority to control its own docket and the course of litigation, including the authority to prevent undue delay in the disposition of cases caused by abuse of litigation process.” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)
Why You Should Answer Motions In An Illinois Divorce
Petitions must be answered. Yet, the judge may not them. 95% of divorces end in an agreed resolution no matter what the temporary issues were. Why would a judge pore over the petition and its answer for a case that will likely be resolved without the judge’s input.
Motions, by their nature, are almost always heard by the judge. A motion is the movant’s opportunity to introduce your case to the judge. Likewise, an answer to a motion is the non-movant’s introduction of THEIR side of the story.
A written answer has the advantage of knowing exactly how the movant is introducing the issue and themselves to the judge. A well written answer allows for an eloquent counterpoint where the non-movant can attack both the motion and the movant.
New issues, if brought up in an answer, may be replied to by the movant in a subsequent reply to the answer.
The judge should read both the motion, the answer and the reply to the answer in advance of an evidentiary hearing. The judge’s mind is likely to be made up by then unless one party is unable to present the necessary evidence to underlie and bolster their motion or answer’s allegations.
In Illinois family courts, evidentiary hearings are often waived in lieu of pretrial hearings. In a pre-trial hearing the parties merely explain their motion and their version of the facts. A judge then makes a recommendation based on the parties’ representations of the facts. The parties versions of the facts are rarely very different. So, this pretrial recommendation is often adopted as an order.
So, if your matter will be decided via pretrial, your written motion or answer will, essentially be your evidence…your entire case. The oral argument should merely be “hitting the high points” of your written filing.