Friday, September 5, 2014

Default Divorce in the Chicago area



Default Divorce in the Chicago area


 When a marriage starts “going downhill”, a spouse can decide to leave the marriage without seeking a divorce, separation, or an annulment. But if one spouse proceeds to file for divorce without knowing where the other spouse is to be found, questions may arise as to whether or not the divorce can proceed. Generally though, if one spouse wants the marriage to end, and the other one is absent, a judge may grant the former a default divorce where certain procedures are followed.

Divorce by Default

After a party files for Divorce in Chicago or the surrounding counties, the divorce paperwork has to be served upon the other spouse. This basically means the other spouse has to receive the paperwork “in hand” in order to have notice of the case and appropriate “service of process”.  There are several ways that service may be achieved. Once the paperwork has been served, the party that is served has 30 days to respond and file an appearance informing the court that he or she will be participating in the proceedings.  However, a spouse may not be able to locate their partner and serve the paperwork.  In that case, the filing spouse may ask the court to grant the divorce by default.  How is that achieved?

llinois law authorizes judges to grant divorces by default in some cases even when one spouse has not been served with notice of the proceedings. This is called granting a default judgment for dissolution of marriage. When a judge considers granting a default judgment, he has to listen to the testimony of the filing spouse, and many times rely on that testimony alone, when granting the divorce. Because granting a default judgment under these conditions can seem unfair to the other spouse, the law requires the judge to first make sure that every effort has been made to give the absent spouse notice of the case. The judge can even order additional efforts to be made to provide notice to the spouse.  However, if the Court is satisfied that diligent efforts to locate the other spouse have been made and were unsuccessful, then service of the divorce upon other spouse may be allowed by “publication”.

Another situation in which a judge can grant a default judgment of divorce is if one spouse refuses to participate in the divorce after having appeared before the judge.

Publication

When a spouse cannot be found to be served, the filing spouse can ask the court to allow them to serve the absent spouse by publication. This means that the notice of the divorce is published in a newspaper for a period of time. If there is no response, the filing spouse can ask the court to grant a default judgment. The notice has to be published for three consecutive weeks in a newspaper in your county.  Your attorney can tell you which newspaper would be acceptable for this kind of service.

Default Judgments Are Legally Binding but Can Be Contested

 Though you will be legally divorced after a default judgment is granted, default judgments of divorce do not address certain matters, such as alimony or spousal support.  Why?  Because the Court needs “personal jurisdiction” to order certain things from the other spouse, and the court does not obtain that personal jurisdiction in a divorce through publication.  In addition, if the absent spouse later shows up and can prove that there was never an effort to properly serve them, they may be able to get the default judgment vacated and reversed.

Contact a Chicago area Divorce Attorney

If you are going through a divorce in Chicago,
Cook / Lake or Du Page Counties and your spouse is not participating in the divorce, contact the Chicago divorce attorneys at M. Scott Gordon & Associates, to learn more about default judgments in divorces.


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