You get divorced in the state and the county where you reside; not where you married. About once a week I talk with someone living far away (like, Europe) who is planning to divorce but first must save money and schedule the time to return to Illinois. They think that because they married in Illinois, they must return to Illinois to divorce. That's wrong. You get divorced where you reside.
Personal Jurisdiction - Residence Requirement
The Smith Principles, Park, and Rahm Emanuel
Personal Jurisdiction Over Absent Spouse
Jurisdiction and Venue: Jurisdiction determines the state in which you divorce; venue determines the county and, sometimes, which courthouse or courtroom. This article is about jurisdiction -- whether your case can or should proceed in Illinois. I have a separate article about venue that will help you determine the county or counties in which you may proceed.
There are two types of types of jurisdiction and two types of "venue" -- and your case must qualify in BOTH types of jurisdiction and one type of venue before it can proceed.
Subject Matter Jurisdiction: An attorney must determine whether a case may properly be brought before a particular court. This is "subject matter jurisdiction." Some issues between married couples and unmarried couples with children MUST be resolved outside of family court, some issues MAY be resolved outside of family court, and some issues MUST be resolved INSIDE family court. The most obvious example of a non-family court hearing a case between husband and wife is when a criminal court adjudicates a criminal charge. In larger counties, the court system has entire divisions staffed with scores of judges and clerks who do nothing but divorce and paternity cases. In smaller counties, one or two judges might hold court and they will change hats (criminal, chancery, family law) depending on the case called. In every county of Illinois, some (but not all) child support matters must be brought in "the administrative system" -- a court system separate from the usual family law court.
It can get confusing. Making mistakes in the decision of which court to use can prove fatal to a good case. If a court lacks subject matter jurisdiction, then it doesn't have authority to do ANYTHING. When a court acts where it lacks subject matter jurisdiction, none of it counts. Work with a lawyer.
Personal Jurisdiction -- Residence Requirement: Personal jurisdiction refers to the power a court has over an individual. If you've never been to Alaska, the Alaskan courts (probably) have no authority over you. Similarly, if you landed at O'Hare airport on a layover, you couldn't just get a divorce while you were waiting for your next flight. All states have laws that determine when persons qualify to avail themselves of – and are susceptible to – the state's legal system.
It is easy for petitioners to satisfy Illinois' jurisdictional requirement: it is determined solely on the basis of "residency." The law says:
(a) the court shall enter a judgment of dissolution of marriage when 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 service, and the residence or military presence had been maintained for 90 days.
No Waiting Period to Establish Residency: For the Petitioner, there is no waiting period. You may file for divorce the very day you move to Illinois. It's possible to obtain temporary relief (temporary possession of children, child support, protective orders and injunctions, etc.) immediately -- even though neither party has lived in Illinois for 90 days. It is possible to file for divorce in Illinois even before you've moved here.
Residency Defined: In Garrison v. Garrison, 107 Ill.App.2d 311, 246 N.E.2d 9 (2d Dist., 1969) Cloann and David Garrison celebrated their wedding in Illinois and remained here for four years. Then Cloann became ill, her doctor told her to move to Florida, so she packed up and took the kids. David stayed behind for work. He visited his family two or three times a month and they came back to Illinois for the summers. After four years of this back-and-forth, they built a nice home in Florida, but kept the same schedule. Four years later they built another nice home in Illinois. On one of her trips back to Illinois, David caught Cloann in an affair. She sued for spousal support and David countered with a divorce petition. Cloann lost. Hoping to salvage something, Cloann attacked the court's ruling, arguing it lacked jurisdiction because neither she nor David were residents of Illinois. She probably was a resident of Florida, and as for David, she produced evidence that:
his children went to school in Florida,
David signed a "Declaration of Domicile," indicating that Florida was his place of domicile,
the parties belonged to social organizations in Florida
David stayed with his family in Florida, a lot
Nice try, the appellate court told Cloann, but you lose again. Here's what they had to say about "residence":
The word 'residence' may have a variety of meanings depending upon the context in which it is used. As used in the Divorce Act (now, the Illinois Marriage and Dissoultion of Marriage Act, but Section 104's language about "residence" hasn't changed) it does not mean the same as 'domicile.'
As used in the Divorce Act, 'residence' this denotes 'permanent abode.' It is the place one considers as 'home.' Of paramount importance in determining whether a given place is or is not one's residence is the intent of that person to live there as his permanent home.
Garrison v. Garrison, 107 Ill.App.2d 311, 246 N.E.2d 9(2d Dist., 1969)
In Rosenshine v. Rosenshine, 377 N.E.2d 132, 60 Ill.App.3d 514, 17 Ill.Dec. 942 (1 Dist., 1978) Danielle and Marshall Rosenshine married in Illinois in 1959. In 1970, they moved their family to Israel. Marshall's father became ill and he returned to Illinois. Danielle visited him for three weeks in January, 1975. In March, she and the kids returned to Illinois for the funeral. Marshall returned to Israel to tend to his businesses, but Danielle remained in Illinois, staying with family. In June, 1976 -- after being back in Illinois for more than a year -- Danielle filed for divorce. Marshall argued that she failed to satisfy the (then) one-year residency requirement. The trial court sided with Danielle and Marshall appealed.
There wais a laundry list of evidence about all the bank accounts and driver's licenses and who was registered to vote where, etc. -- it provides an excellent checklist of good evidence to present in these residency challenge cases. The appellate court ultimately ruled in Marshall's favor and dismissed Danielle's case. The court quoted the "intent-is-of-paramount-importance" language of Garrison (above) and added: "Intent is determined primarily from the acts of the person since acts and conduct may negate declarations of intent." Rosenshine v. Rosenshine, 377 N.E.2d 132, 60 Ill.App.3d 514, 17 Ill.Dec. 942 (1 Dist., 1978)
The Smith Principles, Park, and Rahm Emanuel: In 2009 Rahm Emanuel wanted to run for mayor of Chicago. He previously served as Barack Obama's Chief of staff and, during that time, moved his family to a home he rented in DC and rented out the Chicago home he had owned for more than a decade. His mayoral candidacy was challenged on the objection that he did not satisfy the one-year residency requirements for the election.
The Emanuel case (Maksym v. Board of Election Commissioners of the CIty of Chicago,) is all about "candidate qualifications" -- not divorce -- but the language and concepts apply well in the context of domestic relations. Indeed, the Supremes noted in Emanuel that "this court has applied similar principles in virtually every setting in which it has construed a legal residency requirement."
In Emanuel, a majority of the Supremes relied on the 1867 "Smith Principles" to say a temporary relocation does not amount to an abandonment of one's residency . . . "plain and simple." Smith, a longtime Illinois resident, was appointed to a circuit judgeship by the Governor in 1867. A lawsuit was filed to remove Smith on the ground that he had not been an Illinois resident for five years preceding the appointment as was required at the time. Smith had, in fact, moved with his family to Tennessee for eight months during the five-year period. The matter was presented to the Illinois Supreme Court which considered the "surrounding circumstances" and pronounced the "Smith Principles":
residency is established by physical presence and an intent to remain in that place,
once established, residency continues until abandoned,
establishment and abandonment are principally a question of intent, and
the burden is on the challenger to prove that a residency, once established, has been abandoned.
A specially concurring opinion in Emanuel said "residency" is not nearly so "plain and simple" and pointed to "[l]ater decisions, namely Pope v. Board of Election Commissioners, 370 Ill. 196 (1938), Park v. Hood, 374 Ill. 36 (1940), and Clark v. Quick, 377 Ill. 424 (1941), each define residence in terms of domicile plus a permanent abode. In other words, under these cases, intent alone is not enough to establish residency."
Maksym v. Board of Election Commissioners of the CIty of Chicago,
The Emanuel case is chock-full of useful quotes and ists of items to include in a residency contest. Here's a sampling of facts the court considered:
At all relevant times, including the time he was in Washington, Emanuel:
paid property taxes on his Chicago house,
stored valuable personal property (a piano and some furniture too big to move and over 100 boxes of personal items) at the Chicago house,
held an Illinois Driver's license with the Chicago address,
registered his car at the Chicago house address,
listed the Chicago address on his personal checks,
voted in Chicago using the Chicago address as his registered voting address,
arranged the leases of the Washington house and the Chicago house to coincide with the end of the children's school year.
So if you're facing a residency issue, don't be afraid to reach for a case beyond Garrison and Rosenshine . . . take a hard look at Emanuel.
Personal Jurisdiction Over an Absent Spouse: If your spouse doesn't live in Illinois, the court may, or may not, be able to exercise personal jurisdiction over him / her. Sometimes the court can exercise "long-arm jurisdiction" over a spouse who has never been to Illinois.
Even if you cannot establish personal jurisdiction over your spouse, the court still has power to dissolve your marriage and take care of the kids (custody). Without personal jurisdiction over the absent spouse, however, the court cannot always finally resolve matters of property division or maintenance.
These determinations are VERY fact-specific. Talk with an attorney about your case and discuss which issues may be finally resolved and which ones must be put on the back burner for another day or another jurisdiction.
by Wes Cowell, updated 5 September 2017. Suggest a correction
Jurisdictional mistakes are the most costly. Work with a lawyer from the beginning to avoid paying a penalty, later on. Need advice? Call, leave your info, or schedule a consult.
> Marriage Formalities in Illinois
> Prenuptial & Postnuptial Agreements
> Broken Promises / Give Back the Ring
> Same-Sex Marriage and Divorce
> The Advantages of Filing First
> Divorce from Start to Finish
> Reserved Issues -- Bifurcated Divorce
> Infliction of Emotional Distress
> How a Divorce Case Can Save a Marriage
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