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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