From an occasional, ongoing series, devoted to your state, your area
We get questions
What if I have legally filed for divorce, and done everything I know, but my spouse refuses to sign the papers?
Two answers and one question come to mind.
Number one: in short, if your spouse was properly served, he or she will probably be surprised upon receiving a notice of default judgment in your favor.
Now the question: Are you sure your spouse is trying to cause trouble? If you have agreed on an uncontested divorce, your spouse may simply be tired of the whole thing and realizes the divorce will go through without any response on her or his part.
Ok, let’s look at the full picture.
Requirements must be met
As the petitioner (the “one who files), it’s up to you (or your attorney) to ensure that the original petition and all ancillary papers are in order, plus it’s up to you (or, again, your attorney) to make sure your spouse (the respondent) is properly served.
If problems exist in the paperwork such that the judge will dismiss the case, or if the respondent was improperly served (or not at all), the respondent–or respondent’s attorney–may be take the tack of “dragging their feet” because they know your filing is imperfect. The easiest way to avoid this problem is simply to hire an experienced, trained divorce attorney who keeps up to date with all relevant laws and knows the local rules of the judges and courts.
According to Illinois Legal Aid:
You or your spouse must have lived in Illinois for at least 90 days before filing for divorce.
Note: You can only file for divorce in Illinois if you live in Illinois as your primary residence. For example, if you work in Michigan for several months of the year your primary residence must still be in Illinois.
For your divorce case to decide custody of your children, the children must have lived in Illinois for at least 6 months before you file for divorce. However, there are exceptions to this and if where you live and can file for divorce is a concern you should talk with a lawyer.
Papers properly filed
Your papers must be completely and accurately filled out with the Clerk’s Office of the Circuit Court that serves either the county you live in or the county in which your spouse resides. Then your spouse must be legally served notice, which will include the original petition, a summons to appear and copies of any requests of the court. At that point, as respondent your spouse has 30 days to answer the complaint. If the respondent fails to answer–let’s say, for example, your spouse simply doesn’t “get it” that the court now has jurisdiction, or he/she thinks by ignoring it, the case will “go away.” Then you file a motion for a default judgment and unless something is horribly awry in your filing, the court will award you what you’ve asked for by virtue of default judgment.
However, this must be emphasized: this is why it’s crucial to have your spouse legally served.
Motion to vacate
For example, let’s say an inexperienced server delivered the summons to “someone” at an address where your spouse used to live; or the summons was delivered to another person with the same name as your spouse.
In that case, your spouse can reopen the case with a motion to vacate (or, set aside) the default judgment. If that motion prevails, it’s back to square one: the divorce process starts all over.
Out-of-state spouse; spouse can’t be found
Related questions that complicate matters arise when:
- the spouse has never lived in Illinois (basically, the divorce can be granted, but the court may have no jurisdiction to order the spouse to do anything, such as pay child support or divide property), and
- the spouse has “disappeared,” that is, can not be found.
If either applies in your case, you almost certainly need the help of a qualified, experienced attorney.
No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.
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