What Is An Appearance In An Illinois Divorce?
An appearance is “[t]he formal proceeding by which a defendant submits himself to the jurisdiction of the court.” Black’s Law Dictionary (11th Edition). So, what is an appearance in an Illinois divorce case and how can that appearance affect an Illinois divorce?
“Every defendant who is served with summons shall answer or otherwise appear on or before the return day of the summons” 735 ILCS 5/18-106
Cook County’s appearance form can be found here.
The appearance is the notice to the Petitioner and the court, itself, that the defendant/respondent officially wants to be fully involved in the divorce process and enjoy all of the rights a litigant is thereby afforded.
The most important part of that notice of appearance is letting the other side know how you can be reached. The Cook County appearance form requires that you put your address, telephone number and up to three emails on your appearance.
Providing notice is really important in the legal divorce process. So, you have to provide the opposing counsel with notice of your appearance…so they can provide you with notice of any future pleadings.
“If a written appearance, general or special, is filed, copies of the appearance shall be served in the manner required for the service of copies of pleadings.” Cook County Rules 1.2(a)
What Happens After An Appearance Is Filed In My Illinois Divorce Case?
After an appearance is filed, the court now has in personam jurisdiction over that person. In personam jurisdiction means the court now has the authority to make orders directly about the person, not just their things.
“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
In order to ask for alimony, child support, or parenting time, the court must have the jurisdiction over that person to make those demands. Only personal service or an appearance will allow for that jurisdiction.
When Should I File My Appearance In My Illinois Divorce?
When a divorce is initiated, a summons is issued. A summons is a formal announcement that a lawsuit has begun. That summons must be served upon the defendant to that lawsuit so that the defendant knows the legal process has begun…and they have the option to participate in it.
“The defendant may make his or her appearance by filing a motion within the 30-day period, in which instance an answer or another appropriate motion shall be filed within the time the court directs in the order disposing of the motion. Ill. S. Ct. R. 181(a)
So, if you wish to participate in the divorce process, an appearance must be filed within 30 days of service.
If you don’t file an appearance and just file a Response To The Petition For Dissolution of Marriage, you’re okay so long as you’ve done it in time.
“If the defendant’s appearance is made in some other manner, nevertheless his or her answer or appropriate motion shall be filed on or before the last day on which he or she was required to appear.” Ill. S. Ct. R. 181(a)
Actually, any filing other than an appearance essentially functions as an appearance per the Illinois statute.
“Pleading by defendant. The defendant may file any appropriate motion as in ordinary civil cases, and may answer as hereinafter provided by way of general denial, or specific denial or affirmative defense, and such motion or answer shall constitute an appearance in the case” 735 ILCS 5/6-116
“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” 735 ILCS 5/2-301(a-6)
If you file your appearance after the 30 day time limit, the divorce judge will probably say close enough…if you’re not already defaulted.
Even if you do file your appearance on time, you still have to file your other pleadings on a timely basis. “A party who appears without having been served with summons is required to plead within the same time as if served with summons on the day he appears.” Cook County Court Rule 1.2
What Happens If I Don’t File An Appearance In My Illinois Divorce?
If you were served with divorce papers and you don’t file an appearance, you will likely be defaulted and the petitioning spouse will get all the reasonable relief that they asked for in their Petition For Dissolution Of Marriage.
“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)
Even matters as important as your children will be determined without you if you do not file an appearance.
“If no appearance has been filed by the respondent, no parenting plan is required unless ordered by the court.” 750 ILCS 5/602.10(a)
Can I File An Appearance To Contest My Service Or Even The Divorce, Itself?
Yes. You can file what’s called a “limited scope appearance” just to challenge the service or jurisdiction. This appearance does not submit you to the jurisdiction of the court for the underlying purpose, the divorce.
“Prior to the filing of any other pleading or motion…a party may object to the court’s jurisdiction over the party’s person” 735 ILCS 5/2-301(a)
Maybe you or your spouse don’t even live in Illinois. Maybe you just want to justifiably delay your divorce. You are entitled to force the process to work properly before being completely involved in the case.
But, you cannot ask for things in a divorce while you’re also asking the court to dismiss the divorce for procedural reasons.
“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)
What Does It Cost To File An Appearance In Illinois?
Filing your appearance is not free.
“The appearance fee shall be paid when the appearance is effected.” Cook County Court Rule 1.3(c)(on a side note, I would like to observe that Cook County used the noun “effect” as a verb here and it was not me that misspelled the word. My quote is accurate in form if not in function)
Appearances for all domestic relations cases are $ 251 in Cook County as of the date of this article’s publication.
Every county in Illinois has its own fee schedule which is usually found on the Circuit Clerk’s Court site.
Can My Appearance Fee Be Waived In Illinois?
If you feel you cannot afford the court fees, the $251 appearance fee can be waived in your divorce or parentage action if you have been found indigent by the court.
An application for waiver of court fees must first be filed using this form
“An Application for Waiver of Court Fees in a civil action pursuant to 735 ILCS 5/5-105 shall be in writing and signed by the applicant or, if the applicant is a minor or an incompetent adult, by another person having knowledge of the facts.(1) The contents of the Application must be sufficient to allow a court to determine whether an applicant qualifies for full or partial waiver of assessments pursuant to 735 ILCS 5/5-105, and shall include information regarding the applicant’s household composition, receipt of need-based public benefits, income, expenses, and nonexempt assets.” Illinois Supreme Court Rule 298
To determine whether you qualify for a waiver of the appearance fee, you have to show the court that you are indigent.
“If the court finds that the applicant is an indigent person, the court shall grant the applicant a full fees, costs, and charges waiver entitling him or her to sue or defend the action without payment of any of the fees, costs, and charges.” 750 ILCS 5/5-105(b)(1)
“Indigent person” means any person who meets one or more of the following criteria:
(i) He or she is receiving assistance under one or more of the following means-based governmental public benefits programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), General Assistance, Transitional Assistance, or State Children and Family Assistance.
(ii) His or her available personal income is 125% or less of the current poverty level, unless the applicant’s assets that are not exempt under Part 9 or 10 of Article XII of this Code are of a nature and value that the court determines that the applicant is able to pay the fees, costs, and charges.
(iii) He or she is, in the discretion of the court, unable to proceed in an action without payment of fees, costs, and charges and whose payment of those fees, costs, and charges would result in substantial hardship to the person or his or her family.
Almost everyone qualifies for indigency using prong (ii) of the test, being at 125% of the poverty line or below. Use this chart to see if you qualify.
A Note About Filing Appearances In Cook County, Illinois
When you file your appearance in Cook County, Illinois, this is also your one chance to automatically request that your case be heard in District 1, Chicago, The Daley Center.
“Removal of a pre-judgment case filed within a suburban municipal district shall occur by the sole action of the Respondent when the Respondent files an appearance, together with the District Transfer form. Absent leave of court, district transfers must be filed no later than 30 days after service of summons, not counting the day of service.” Cook County Court Rule 13.3(f)
This means that if your spouse filed your divorce in Skokie, Rolling Meadows, Maywood, Bridgeview or Markham, you can request that the case be moved to the Daley Center if you file the district transfer form when you file your appearance.
If you have to file an appearance in an Illinois divorce case, you’re at the beginning of a long journey. Call my family law office in Chicago, Illinois to talk to someone who has guided people through that journey over a thousand times.