The first question every divorce filer has is where do you file your divorce lawsuit? Most people understand that you have to go to court to file divorce, but there are courts everywhere–which one do you file your divorce petition in? This article will provide a basic overview of what court to choose–and the short answer is in the Circuit Court of the State of Illinois with jurisdiction over your county–by explaining three topics: (1) the difference between the various courts in our state, (2) what court has jurisdiction over the parties to a divorce, and (3) what the proper venue for a divorce filing is.
There are several courts in Illinois. Which courts hear divorce cases?
Divorce is a state-law matter, and divorces are therefore heard in the state courts of Illinois. There are two types of courts, trial-level courts and appellate courts. Trial-level courts make initial rulings on cases, and the appellate courts review the trial-level court’s rulings to determine if that court has made an erroneous ruling.
In Illinois, the trial-level courts are called “Circuit Courts,” and the first level of appellate courts are called “District Courts.” The Circuit Court that oversees McHenry County is called the Circuit Court for the “Circuit Court for the 22nd Judicial Circuit of the State of Illinois.” In Lake County, it’s the “Circuit Court for the 19th Judicial Circuit of the State of Illinois.” In Kane County, it’s the “Circuit Court for the 16th Judicial Circuit of the State of Illinois.” The Circuit Court is where you initially file your divorce petition or lawsuit.
If you believe the judge in your case made a mistake, you can file an appeal of any final order and some non-final orders to the Appellate Court of the State of Illinois. The Appellate Court is broken up into five “Districts” for geographical convenience. The local district of the Appellate Court of the State of Illinois is the “Second District of the Appellate Court of the State of Illinois.” The Second District is located in Elgin, Illinois.
If you believe the Appellate Court has made a mistake or if you believe the law is wrong and needs to be changed, you can appeal you decision from the Second District to the “Illinois Supreme Court.” For most family law issues, the Supreme Court’s jurisdiction is discretionary and it does not have to (and likely will not) hear your appeal.
A lot of divorce filers experience confusion because the federal courts have the opposite naming scheme. Federal trial courts are called “District Courts,” and the first level of federal appellate courts are called “Circuit Courts.” Don’t let this trip you up.
Which Circuit Courts have jurisdiction to hear our divorce case?
Now that we have the names and locations of the Circuit Courts straight, the next question is (or at least should be) which courts have jurisdiction over me and my spouse to hear our divorce case. This concept is occasionally referred to as “personal jurisdiction” or “in personam jurisdiction.”
Illinois has general jurisdiction laws that apply to every case, but a special set of jurisdiction rules also apply to divorce cases. Because the special personal jurisdiction rules for divorce cases are more restrictive than the general personal jurisdiction rules, if you can fit into the divorce personal jurisdiction rules, you will satisfy the general personal jurisdiction rules.
Personal jurisdiction in divorce cases is set forth in Section 401 of the Illinois Marriage and Dissolution of Marriage Act (shortened here to “IMDMA”). The IMDMA is codified in our laws at 750 ILCS 5/101, et seq. Section 401(a) of the IMDMA provides in part that:
The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding . . .
So, the Circuit Court has jurisdiction to hear your divorce petition if (1) you have lived here for 90 days, and (2) you are able to serve your spouse with papers for the divorce case.
But which of the Circuit Courts do we file our divorce case in?
The funny thing about divorce cases is that the IMDMA tells you where you should file your divorce case but does not forbid other Circuit Courts from hearing the case. Section 104 of the IMDMA provides that:
The proceedings shall be had in the county where the plaintiff or defendant resides, except as otherwise provided herein, but process may be directed to any county in the State. Objection to venue is barred if not made within such time as the defendant’s response is due. In no event shall venue be deemed jurisdictional.
The short answer to this question is that you should file your divorce petition in the county in which you or your spouse resides unless you have a pretty good reason to be filing elsewhere. On one hand, Section 104 states that the proceeding “shall” be in the county where either spouse lives, but it also cops out saying that “in no event shall venue be deemed jurisdictional,” which is essentially lawyer speak for “any Circuit Court can hear any divorce case in Illinois.”
Divorcing spouses occasionally file suit in counties that are more convenient for them that the county in which they reside. For example, if you live in McHenry County but work in in downtown Chicago, it may make sense to try to file your divorce in Cook County to make the divorce process as easy as possible on your job. Your spouse may object and the judge may also object, and the end result is that your divorce case will be kicked back to the county in which you reside. In come cases it may make sense to take this risk, and in other cases it makes little sense.