In Illinois, age 18 is not the end of a parent’s obligation to their children. Illinois parents are still legally responsible for contributing to their children’s college expenses within reason. A Divorced Parent’s Obligation To Pay For College In Illinois In Illinois, married parents are governed by the Illinois Marriage and Dissolution of Marriage Act which provides that “The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the educational expenses of any child of the parties. Unless otherwise agreed to by the parties, all educational expenses which are the subject of a petition brought pursuant to this Section shall be incurred no later than the student’s 23rd birthday, except for good cause shown, but in no event later than the child’s 25th birthday.” 750 ILCS 5/513 To determine the obligation of married parents to their college bound children, Illinois courts look at “The present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement.(2) The standard of living the child would have enjoyed had the marriage not been dissolved.(3) The financial resources of the child.(4) The child’s academic performance.” 750 ILCS 5/513(j) The college costs that an Illinois court can order will not exceed the tuition and room and board of the University of Illinois. “Educational expenses may include, but shall not be limited to, the following:(1) except for good cause shown, the actual cost of the child’s post-secondary expenses, including tuition and fees, provided that the cost for tuition and fees does not exceed the amount of in-state tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year” 750 ILCS 5/513(d) An Unmarried Parent’s Obligation To Pay For College In Illinois Unmarried parents in Illinois must have an order stating they are the parent to have any obligation to a child. “The court shall issue an order adjudicating whether a person alleged or claiming to be the parent is the parent of the child.” 750 ILCS 46/802 Once that order is entered, the unmarried parent has the same obligation to that child as a married parent would have…including contributing to college expenses. “In determining….expenses for a non-minor child, and related post-judgment issues, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 46/802 Contribution to college expenses is further enshrined in the Illinois Parentage Act of 2015. “This subsection [regarding child support] shall not be construed to prevent or affect the establishment or modification of an order for the support of a minor child or the establishment or modification of an order for the support of a non-minor child or educational expenses under Section 513 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 46/801(e),(m) Unmarried parents’ contribution would be different than a married parent’s obligation because an unmarried parent would not have to consider “The standard of living the child would have enjoyed had the marriage not been dissolved” 750 ILCS 5/513(j)(2). This probably holds the unmarried parent to a different, lower standard. One of the unmarried parents are likely to have a strained relationship with their college aged child. The relationship of the child and the parent does not affect the parent’s obligation to provide for the expenses of the child’s college education. “[I]t is well settled that this obligation to contribute to educational expenses is not conditioned upon a continued good relationship between parent and child or upon obtaining prior consent from the supporting parent.” In re Marriage of Sreenan, 81 Ill. App. 3d 1025, 1029 (Ill. App. Ct. 1980) What If The Child Of Unmarried Parents Was Never Declared The Child Of The Father? Children are automatically determined to the child of an unmarried mother. “The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child” 750 ILCS 46/201(a) If the biological father is not legally declared the father earlier, the adult child (and only the child) can still declare the father their legal father for the purposes of pursuing college expense contributions from that father. “A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated parent may be commenced at any time, even after: a) the child becomes an adult, but only if the child initiates the proceeding” 750 ILCS 46/607(a) The child would then need to recruit the other parent to pursue the college expense contribution request. The child may declare parentage alone but the child cannot pursue college expense contribution alone. “The child is not a third party beneficiary to the settlement agreement or judgment between the parties after trial and is not entitled to file a petition for contribution.” 750 ILCS 5/513(i) If you were never married but you had a child who is going to college, both parents may have an obligation to pay for college. Contact my Chicago, Illinois family law firm to discuss what (if any) obligation either parent has to their child beyond the age of 18. Via https://rdklegal.com/do-unmarried-parents-have-to-pay-for-their-childrens-college-expenses-in-illinois/
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When adults with children separate, those adults govern their parenting time and parental decision-making with court orders. These court orders tell each parent when they are to pick up their children and what they can do with the children when the parent has custody of the child. When one (or both) parents do not follow custody orders, the other parent has the right to enforce the custody orders. Typically, the court orders will be enforced in a domestic relations court. Outside of court, at pick-up time, the judge is not present. Can the police be called to enforce a child custody order? What Happens When You Call The Police To Enforce A Child Custody Order In Illinois? Either parent can call the police at any time. The police will eventually arrive and talk to each parent. The police will listen to each parent and try to mediate and diffuse the situation. The police will even read the court order (often a multiple page document) and opine and who is supposed to do what. What the police will hardly ever do is enforce the court order. What did you expect? For the police to draw their guns and force one parent to turn the child over to the other parent? If one parent simply takes the child into their home and closes the door, the police are not allowed to go into that house. The Fourth Amendment of the United States Constitution guarantees that “[t]he right of the people to be secure in their . . . houses . . . shall not be violated.” U.S. Const. amend. IV. “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505 at 511 “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980) What is transferring a child to another parent if not a “seizure of a person?” The police are never going into a house to get a child…without a warrant. Getting A Warrant To Get A Child In Illinois Issuing a civil warrant is a rarely used procedure which gives the police the authority they need to retrieve a child based on a court order. While a parent is asking a court to enforce the child custody order, the parent can also ask the court to issue a warrant to effectuate that enforcement. “Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this State.” 750 ILCS 36/311(a) “If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this State, it may issue a warrant to take physical custody of the child.” 750 ILCS 36/311(b) The warrant to take physical custody of a child allows the police to enter private property. “A warrant to take physical custody of a child is enforceable throughout this State. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.” 750 ILCS 36/311(e) “The application for the warrant must include the statements required by Section 308(b) [of the Uniform Child-Custody Jurisdiction and Enforcement Act]” 750 ILCS 36/311(a) The required statements in the petition for the issuance of a civil warrant to take phsyical custody of a child are as follows: “A petition for enforcement of a child-custody determination must state: (1) whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was; (2) whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this Act and, if so, identify the court, the case number, and the nature of the proceeding; (3) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; (4) the present physical address of the child and the respondent, if known; (5) whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and (6) if the child-custody determination has been registered and confirmed under Section 305, the date and place of registration.” 750 ILCS 36/308(b) Once the court authorizes a warrant to take physical custody of the child, the warrant must be written in a particular way to provide clear instructions to the police. “A warrant to take physical custody of a child must: (1) recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based; (2) direct law enforcement officers to take physical custody of the child immediately; and (3) provide for the placement of the child pending final relief.” 750 ILCS 36/311(c) Like any warrant, the other parent must get a copy of the warrant during the pick-up of the child. “The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.” 750 ILCS 36/311(d) Do not expect the police to arrange a SWAT team to break down the other parent’s door and raid the home. More likely, the police will explain to the other parent that “you are either bringing that child out…or we are coming in.” A parent who would decide on the latter option can expect their parenting time to be reduced significantly based on that decision (which is clearly against the child’s best interests). Parents are adults. Adults are supposed to follow the rules. When adults do not follow the rules, the police get involved. This is not a surprise. Alternatives To Issuing A Warrant To Get A Child Issuing a warrant is an extreme step to enforce parenting time. A warrant to take physical custody of a child will only be issues “If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective” 750 ILCS 36/311(e) Alternatively, a parent can ask for a variety of forms of relief from the court when they ask the court to enforce parenting time. “If the court finds by a preponderance of the evidence that a parent has not complied with allocated parenting time according to an approved parenting plan or a court order, the court, in the child’s best interests, shall issue an order that may include one or more of the following:
The final option allowing the court to order “any other provision that may promote the child’s best interests” is almost certainly going to be a change in custody based on the defiance of the existing order. “Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child” 750 ILCS 5/610.5(a) After all, if a parent is not following the current order…the order must not be working for them. Finally, enforcing a court order will cause the party who defied the court order to pay the enforcer’s attorney’s fees. “In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750 ILCS 5/508(b) If you are even considering the need for police to enforce your parenting time, you have big problems. Contact my Chicago, Illinois divorce law firm to speak with an experienced Illinois family law attorney. Via https://rdklegal.com/can-police-enforce-a-child-custody-order-in-illinois/ Many people who interact with the Illinois family system hold it in very low regard. After a spate of bad facts, bad luck and probably bad representation, the unhappy Illinois family law litigant may wish to remove his case to a different court altogether. Apart from the Illinois state courts, the only other court system available to an Illinois resident is the Federal courts. Can you remove an Illinois divorce case to federal court? Illinois Courts Govern Illinois Divorce Law In Illinois, divorce is governed by Illinois state law. Specifically, an Illinois divorce proceeding is dictated by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/), the Illinois Parentage Act of 2015 (750 ILCS 46/), the Illinois Code of Civil Procedure (735 ILCS 5/), and other Illinois state laws. Illinois state laws get adjudicated by Illinois state courts. “[S]tate courts are the ultimate expositors of state law.” Mullaney v. Wilbur, 421 US 684 – Supreme Court 1975 Federal courts have superior jurisdiction and authority over similar matters that state courts might opine on. Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) However, federal courts cannot simply trump any state court decision. Federal courts have a limited jurisdiction which may only be exercised appropriately. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Federal Courts Have No Jurisdiction Over Divorce Matters Federal courts never have any jurisdiction over a divorce. “[F]ederal courts have no jurisdiction over suits for divorce or the allowance of alimony.” Ankenbrandt v. Richards, 504 US 689 – Supreme Court 1992 The “regulation of domestic relations [is] an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 US 393 – Supreme Court 1975 Federal courts have waived any jurisdiction over divorce matters since 1859. “We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce.” Barber v. Barber, 21 How. 582 (1859) Federal courts can get involved in state matters when fundamental issues of justice are deemed at issue. If you cannot get justice in a state divorce court, you are allowed to remove the case to federal court under very particular circumstances. “Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” 28 U.S.C. § 1443 “Section 1443 (1) entitles the defendants to remove [state] prosecutions to the federal court only if they meet both requirements of that subsection. They must show both that the right upon which they rely is a “right under any law providing for . . . equal civil rights,” and that they are “denied or cannot enforce” that right in the courts of [their state].” Georgia v. Rachel, 384 US 780 – Supreme Court 1966 Proving that your federal rights will be denied in state court is an enormous undertaking. A litigant must “show that he will be denied or cannot enforce his rights in the state courts. [Then, it must be proven] that if in fact [litigant’s] rights have been violated, an appeal to the state appellate courts would be ineffective to vindicate those rights….the vindication of the defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted … that those rights will inevitably be denied” Ridinger v. Williams, Dist. Court, D. Delaware 2020 (citations omitted) Even if a federal court could obtain jurisdiction over an Illinois divorce, the federal court could not alter or effectively interpret the Illinois statutes governing the Illinois divorce. “Decisions of the Federal courts in construing statutes of this State are not binding on this court.” Kelsay v. Motorola, Inc., 384 NE 2d 353 – Ill: Supreme Court 1978 Constitutional Issues In An Illinois Divorce Constitutional issues come up all the time in Illinois divorce court. However, removal to federal court cannot occur just because a divorce is dealing with issues relating to the U.S. Constitution. “State courts can and do consider constitutional arguments in custody cases.” EA v. Gardner, 929 F. 3d 922 – Court of Appeals, 7th Circuit 2019 Federal courts are not to second guess a state court’s constitutional decisions in ongoing divorce proceedings. “[F]ederal courts are required…to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Tobey v. Chibucos, 890 F.3d 634, 651 (7th Cir. 2018) More often than not, any constitutional matters a litigant asks to be addressed by a Federal court will already have been addressed by the state court. If that’s the case, the federal court will deem the matter precluded. “[W]e see no reason why [a litigant] should be entitled to reopen matters that the state court actually resolved or could have resolved.” Golden v. Helen Sigman & Associates, Ltd., 611 F. 3d 356 – Court of Appeals, 7th Circuit 2010 You cannot lose in state divorce court and then immediately rush off to federal court for a second bite at the apple. Federal courts will invoke the Rooker-Feldman doctrine which bars federal review of “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 US 280 – Supreme Court 2005 Supplemental Jurisdiction And Divorce In Federal Court The clever federal practitioner may think that a possible way to allow a federal court to consider a divorce matter is to invoke supplemental jurisdiction. Federal courts will resolve state law issues if the matter is intertwined with legitimate federal issues by allowing for supplemental jurisdiction over the state matter. Supplemental jurisdiction is a court’s “jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original jurisdiction.” Black’s Law Dictionary (11th ed. 2019) This seemingly valid supplemental jurisdiction exception to the rule that divorce cases are not to be considered in federal court is rendered moot by federal statute. Federal law precludes supplemental jurisdiction from attaching to divorce matters. “[Supplemental jurisdiction shall not] confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree.” 42 U. S. C. § 13981(e)(4) Quit dreaming. Your divorce case is never going to federal court. You are stuck here in state court with the rest of us. What you probably need is competent counsel to resolve your issues in the state court where your divorce case started…and will inevitably end. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/removing-an-illinois-divorce-case-to-federal-court/ When people lament their former spouses’ failings a polite way to say it is “he/she was impossible.” Be careful…the former spouse just might agree and claim that further compliance with the final divorce decree is impossible. The “impossible” ex-spouse will argue that they are, therefore, excused from following the agreement and/or orders. 99% of final divorce judgments are resolved by agreement in whole or in part. An agreement which is incorporated into a Judgment for Dissolution of Marriage will only be reviewed pursuant to contract law. “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/502(e) (emphasis mine) The clever divorcee will then use contract law doctrines to avoid obligations as required by their marital settlement agreement. One such contract law doctrine exempting performance of a party to the contract is the impossibility doctrine. The impossibility of performance doctrine is “the principle that a party may be released from a contract on the ground that uncontrollable circumstances have rendered performance impossible.” Black’s Law Dictionary (11th ed. 2019) “The doctrine of legal impossibility, or impossible performance, excuses performance of a contract only when performance is rendered objectively impossible either because the subject matter is destroyed or by operation of law.” Innovative Modular Solutions v. Hazel Crest School Dist. 152.5, 2012 IL 112052 (citations omitted) For example, transferring a marital property in a divorce could be deemed impossible if the property was destroyed in a fire or a flood. The impossibility doctrine leaves lots of room for mischief. A bitter spouse could leave the door open, let a dog run away and then claim that it’s impossible to turn over the dog. Most former spouses will not do something so obviously egregious and then hide behind the impossibility doctrine. They’ll simply say “I cannot work anymore. Therefore, I can’t fulfill my obligations. Sorry, it is impossible.” The impossibility doctrine cannot be used for any circumstance which was foreseeable at the time the parties entered into the agreement. For example, getting older is foreseeable. Becoming disabled is probably not foreseeable. “The party advancing the doctrine must show that the events or circumstances which he claims rendered his performance impossible were not reasonably foreseeable at the time of contracting.” YPI 180 N. LaSalle Owner, 403 Ill. App. 3d at 6-7 (citations omitted) The question which determines foreseeability as a bar to impossibility is, “could this situation which rendered the performance impossible have been included in the agreement?” “Where a contingency that causes the impossibility might have been anticipated or guarded against in the contract, it must be provided for by the terms of the contract or else impossibility does not excuse performance.” YPI 180 N. LaSalle Owner, 403 Ill. App. 3d at 6-7 Impossibility is not a defense to performance if the party claiming impossibility created the situation rendering performance impossible. “The doctrine of impossibility of performance requires that the circumstances creating the impossibility were not and could not have been anticipated by the parties, that the party asserting the doctrine did not contribute to the circumstances, and that the party demonstrate that it has tried all practical alternatives available to permit performance.” Illinois–American Water Co. v. City of Peoria, 332 Ill. App. 3d 1098, 1106 (2002) The accusation “You should have thought of this” and the defense “I just cannot do it” can exist simultaneously. In this scenario, an Illinois court can fashion some other alternative remedy. “[I]mpossibility is unavailable where there are practical alternatives available to permit performance.” Ulanov v. Ulanov, 2020 IL App (1st) 182501-U For example, in Ulanov v. Ulanov, the husband’s health was so poor that it was impossible to contract for a life insurance policy as agreed in the marital settlement agreement. So, the court simply ordered that “Mark would deposit $250,000 into an account titled ‘Mark T. Ulanov and Irene Ulanov, as joint tenants with right of survivorship, subject to court order’” in lieu of securing a $ 250,000 life insurance policy. The impossibility doctrine is only necessary for property division clauses because those contract clauses cannot be modified. “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b) “Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f) “Property rights created by a judgment of dissolution become vested when the judgment is final, and a trial court lacks general jurisdiction to modify an order affecting these rights.” In re Marriage of Hubbard, 215 Ill. App. 3d 113, 116 (1991) If a clause to an agreement cannot be modified, performance can only be excused by a valid defense like the impossibility doctrine. Everything else in an Illinois divorce can be modified. Therefore, no defense doctrines are necessary. All you need is a “substantial change in circumstances” to modify a party’s duties under an Illinois divorce agreement. Maintenance (formerly known as alimony) can be modified in Illinois. “An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5) Child support can be modified in Illinois. “An order for child support may be modified as follows: (1) upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a) All parenting issues are modifiable in Illinois. “[T}he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c) Despite all of this talk about impossibility…almost nothing is impossible with the help of a good lawyer. Contact my Chicago, Illinois family law firm to learn more about what you can and cannot do after your Illinois divorce is finalized. Via https://rdklegal.com/impossibility-in-an-illinois-divorce/ “This is a very amicable divorce,” clients often tell me. In fact, the divorce is so amicable that both parties overlook each others’ mistakes when forming the final agreements. Maybe an asset was forgotten to be included in the Marital Settlement Agreement. Maybe an asset that was included was divided with a faulty valuation. Maybe someone’s income was misunderstood, misstated and support was subsequently flawed. Mistakes happen. Especially in the emotional throes of divorce. Divorce lawyers can only verify so much. Months after the final orders are entered. The party who is harmed by the mutual mistake is no longer so amicable. They want to fix the divorce agreement post facto. Meanwhile, the other party is likely to say “Sorry. A deal is a deal.” Divorce agreements are contracts. Contracts are enforceable. “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/502(e) (emphasis mine) “[S]ettlement agreements are binding absent a finding of unconscionability.” In re Marriage of Stoker, 2021 IL App (5th) 200301 Enforcing two parties to abide by a mutual error is clearly unconscionable. Leaving a contract rife with errors doesn’t help anyone. How does an Illinois divorce court deal with innocent mistakes? Mistakes or errors that both parties made at the time the divorce agreement was finalized can be undone after the divorce is entered and finalized under the doctrine of mutual mistake of fact. A mistake of fact is “a mistake about a fact that is material to a transaction.” Black’s Law Dictionary (11th ed. 2019) A mutual mistake is “a mistake that is shared and relied on by both parties to a contract.” Black’s Law Dictionary (11th ed. 2019) “[T]his court has long held that mutual mistake, or mistake of one side and fraud on the other, may give rise to a claim for reformation of a written contract.” Czarobski v. Lata, 882 NE 2d 536 – Ill: Supreme Court 2008 “A mutual mistake…is a mistake common to both contracting parties wherein each labors under the same misconception; thus, when there is a mutual mistake, the parties are in actual agreement but the agreement in its written form does not express the parties’ real intent. Parol evidence is admissible to establish the fact of fraud or mistake.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992 Almost all agreements in an Illinois divorce become entered as a subsequent order. To bring the mutual mistake to the divorce court’s attention, a proper motion to vacate the order must be filed. If the mutual mistake of fact was discovered within 30 days of the entry of the agreement, a court is likely to grant the reformation of the agreement without too close of a look. “The court may, in its discretion…may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e) After 30 days, Illinois courts become more stringent about final orders and judgments they are willing to modify. “Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section…All relief…shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.” 735 ILCS 5/2-1401 Undoing an older order requires a meritorious defense and due diligence. “To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the section 2-1401 petition.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015) The mutual mistake is the meritorious defense. “A section 2-1401 petitioner is not entitled to relief `unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.’” Kaput v. Hoey, 530 NE 2d 230 – Ill: Supreme Court 1988 (Quotations Omitted) The due diligence is when did you know the agreement should have been changed…and how soon did you act on that knowledge? “Due diligence requires the section 2-1401 petitioner to have a reasonable excuse for failing to act within the appropriate time. Since section 2-1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or negligence a party relying on section 2-1401 is not entitled to relief unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently, when he failed to initially resist the judgment. In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys.” Smith v. Airoom, Inc., 499 NE 2d 1381 – Ill: Supreme Court 1986 (Citations Omitted) The reasonable time to pursue a reformation of contract is 2 years. “[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” 735 ILCS 5/2-1401(c) If a mutual mistake was made when finalizing a divorce agreement, that mistake and its mutuality must be proven to the court in order to modify the agreement. “In order to entitle a party to reformation of a contract, he must show a mistake by both parties or a mistake by one party which is known and concealed by the other party. A “mutual mistake of fact” exists for purposes of the reformation of a written instrument, when the contract has been written in terms which violate the understanding of both parties.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992 Mutual mistakes are easy to prove because mutual mistakes usually admitted by both parties. Otherwise, the mistake looks like fraud on the part of one of the parties…which leads to lots of bad results for the dishonest party when the divorce agreement does get reformed. Courts do not want people coming back to court reforming previously enforceable contracts. Because of this, defendants often invoke the “parol evidence rule.” “The parol evidence rule generally precludes evidence of understandings not reflected in the contract, reached before or at the time of its execution, which would vary or modify its terms” WW VINCENT v. FIRST COLONY LIFE INS., 814 NE 2d 960 – Ill: Appellate Court, 1st Dist., 3rd Div. 2004 The parol evidence rule would keep out the mistake and mutuality evidence. So, there is an exception to this important contract evidence rule in the case of mutual mistake of fact. “It is well settled that the parol evidence rule is no bar to the admission of evidence on the question of mutual mistake, and this is so even when the instrument to be reformed is clear and unambiguous on its face. Thus, parol evidence may be used to show the real agreement between the parties when a mistake has been made and the evidence is for the purpose of making the contract conform to the original intent of the parties. Parol evidence may be admissible to show the concerns of the parties prior to and contemporaneous with the signing of the written agreement.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992 The courts should consider the evidence of the mutual mistake and what the parties’ original intentions were at the time of forming the divorce agreement…then order the agreement to reflect those intentions based on the now discovered mistake of fact. “A written contract may be reformed to reflect the intention of the parties and the agreement between them.” Schivarelli v. Chicago Transit Authority, 355 Ill.App.3d 93, 99, 291 Ill.Dec. 148, 823 N.E.2d 158 (2005).” Only the mistake portion of the divorce agreement will be rewritten. `”An action to reform a written agreement rests upon a theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake, or through mistake of one side and fraud on the other, some provision agreed upon was omitted, and the action is to so change the instrument as written as to conform it to the contract agreed upon, by inserting the provisions omitted or striking out the one inserted by mutual mistake.”” Schivarelli, 355 Ill.App.3d at 100, 291 Ill.Dec. 148, 823 N.E.2d 158, quoting Suburban Bank of Hoffman-Schaumburg v. Bousis, 144 Ill.2d 51, 58-59, 161 Ill.Dec. 289, 578 N.E.2d 935 (1991), quoting Harley v. Magnolia Petroleum Co., 378 Ill. 19, 28, 37 N.E.2d 760 (1941). Not all final orders in a divorce are agreements which can be undone by a finding of mutual mistake of fact. Some final orders had no agreement. All trial orders are findings by a judge without the agreement of the parties. There can be no mutual mistake in a trial…because there was no mutuality. Therefore, there can be no reformation of a divorce’s terms based on mutual mistake after a hearing or trial determined the order. “Because the parties did not enter into a written agreement or claim the terms of an agreement were not what they had intended, the mutual mistake argument, as a basis for relief, is not applicable.” In re Marriage of Miller, 363 Ill. App. 3d 906, 913 (Ill. App. Ct. 2006) Reforming divorce agreements only really matters for distribution of assets which are non-modifiable. “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b) “Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f) Everything else in a final divorce agreement is modifiable. “[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a) “[N]early all maintenance awards are implicitly reviewable and modifiable.” In re Marriage of Watson, No. 2-21-0137, 10 (Ill. App. Ct. 2022) Parenting time is, likewise, modifiable without alleging an error. “Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a) If you believe your final divorce agreement has a mutual mistake of fact…or any error at all, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/mutual-mistake-of-fact-in-an-illinois-divorce/ Private investigators seem to be a natural part of the distrustful atmosphere of a divorce. In Illinois, private investigators can be called as witnesses in a divorce trial to describe and explain their findings in regard to the other spouse. “You’re a cop aren’t you? Why Do People Hire Private Investigators In An Illinois Divorce? People have been hiring private investigators forever. The reason for hiring a private detective is almost always for the purposes of proving adultery or some kind of relationship. Even back in 1873 an Illinois court took the testimony of a private detective who related that he had the parties under surveillance took walks and carriage rides and on one occasion the investigator saw the man place his hand on the woman’s lap (gasp). Blake v. Blake, 70 Ill. 618 (1873) Adultery is now largely irrelevant because adultery is no longer a grounds for divorce. Furthermore, adultery almost never impacts anything in an Illinois divorce. The courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d)(emphasis mine) For support, “the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine) Likewise, Illinois child support is a pure calculation with zero consideration of either parent’s behavior. Child support is “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D) Parenting time is also immune from the dispersions that adultery may cast. “In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)(emphasis mine) Catching people “red handed” using a private investigator is pointless. In my experience, people are happy to expose their affairs in order to finalize the termination of their prior relationship. Alternatives To Private Detectives In An Illinois Divorce Private detectives simply aren’t necessary to uncover facts because the divorce discovery process uncovers facts using the power of the Illinois Supreme Court Rules. “Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a) There are very few questions that cannot be answered by a divorcing spouse themselves under the discovery rules. A spouse must turn over documents they have control or access to. “Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information…or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action.” Ill. Sup. Ct. R. 214(a) That’s pretty much everything. If a spouse doesn’t have the document, the spouse probably has access to the document and, therefore, must turn the document over to the requesting spouse. “A party may be required to produce documents which are in the possession of third parties, where [the party] has custody or control of those documents.” Central Nat’l Bank v. Baime, 112 Ill. App. 3d 664, 669 (Ill. App. Ct. 1982) If a relevant document still can’t be found, whomever might have that document can be forced to turn the document over via subpoena. “[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1) If you are not looking for a document as part of your divorce investigation, you are looking for testimony about something. Again, the Illinois Supreme Court Rules provide that ANYONE can be made to provide testimony in an ongoing divorce case. “Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202 Even uncovering secret wastefulness and hidden expenses do not require a private investigator in an Illinois divorce. Under the dissipation clause of the Illinois Marriage and Dissolution of Marriage Act, one can simply say, “This money is missing,” and it is the duty of the other spouse to explain where it sent. “Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992 “The general principle is that a person charged with the dissipation is under an obligation to establish by clear and specific evidence how the funds were spent.”In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987 The investigation about missing money or assets becomes the other party’s problem. The alleged dissipator had better investigate good and provide good proof that the money was not spent on a non-marital purpose. Anything less, will be rejected by an Illinois divorce court. “General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987 When A Private Investigator Is Actually Necessary In An Illinois Divorce A private investigator is only needed in an Illinois divorce when there is an issue where no document could exist and people are willing to lie. This situation only really occurs in divorce cases alleging cohabitation for the purposes of avoiding or terminating maintenance. “Maintenance will be terminated based upon resident, continuing, conjugal cohabitation if the ex-spouse paying the maintenance can show that a de facto husband and wife relationship exists.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994 In Illinois, cohabitation is determined by a court after “[considering] various factors defining that relationship, such as (1) its length; (2) the amount of time petitioner and [paramour] spent together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together. The test the court should employ…is the totality of the circumstances.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994 A good private investigator won’t just explain what they saw but will allow the judge to make conclusions based on corroborative evidence. To corroborate is “to add weight or credibility to a thing by additional and confirming facts or evidence.” Black’s Law Dictionary (10th ed. 2014). The maintenance receiver is sure to understate the amount of time they spend with their boyfriend/girlfriend and the intimate nature of that time together. The only way to establish the time and intimate character of the maintenance receiver and their significant other is to hire a private investigator to establish they spend the night together (we all know what happens at night behind closed doors). The private investigator “testified that, during the last week of October 2003, he observed Baker’s car parked overnight at petitioner’s house for five nights. [The private investigator] testified that during that week he observed that Baker’s car had been moved only once. Further, he testified that he did not see either Baker or petitioner in or about the house, as all of the blinds were drawn shut.” In re Marriage of Sunday, 820 NE 2d 636 – Ill: Appellate Court, 2nd Dist. 2004 It can get even more personal. “[D]efendant engaged private investigators to keep plaintiff under surveillance. The investigators learned that plaintiff had been seeing Patrick King on an almost daily basis, and that from May 15, 1967, until the time of trial, she had been in the King apartment on at least 52 occasions, staying there on each occasion from the late evening until 3:00 to as late as 5:00 the following morning. The evidence reveals that during the periods of time plaintiff was in the apartment, lights were switched on and off, and at times there was only what appeared to be a “night-light” illuminating the apartment. It also appears that on several occasions prior to going to the apartment, plaintiff and King spent time drinking in a cocktail lounge, during which times King was observed fondling and caressing plaintiff. The investigators also took photographs, which were admitted into evidence, showing plaintiff and King alone in the King apartment drinking cocktails.” Ganzer v. Ganzer, 249 NE 2d 660 – Ill: Appellate Court, 1st Dist., 2nd Div. 1969 A thorough private investigator will leave little doubt as to the conclusions which must be made. “[A] licensed private investigator, testified on behalf of respondent. He performed 1500 to 2000 investigations in matrimonial matters over the last eleven years. He was employed by respondent on three occasions. In April of 1976 he was requested to ascertain the identity of the person respondent’s wife was living with and where, which required surveillance of petitioner’s apartment in Itasca for eight days from April 6 through April 17, 1976. Surveillance began at about 4 p.m. on each occasion. He observed petitioner pull up to the apartment complex in a white convertible with a male subject later identified as Ken Wyant and saw both enter the apartment through the rear. At 10:30 p.m. all lights in the apartment were turned off. He knew that the two subjects were still in the apartment by virtue of having applied surgical tapes to the door. At 4 a.m., the tapes were still intact. This was done at approximately the same times with the same results on each occasion.” In re Marriage of Sieck, 396 NE 2d 1215 – Ill: Appellate Court, 1st Dist. 1979 There is a thin line between what a private investigator presents and the conclusions that a judge arrives at. The judicial findings have to be based on the private investigator’s testimony and exhibits. “A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.” The People v. Wallenberg, 181 NE 2d 143 – Ill: Supreme Court 1962 When Private Investigators Go To Far In An Illinois Divorce Case In my experience, private investigators are as weird as the fictional ones on TV. For every suave Magnum P.I., there are a dozen bumbling Inspector Clouseaus. Rich Woman: Someone has broken into my safe! Do not let a bad private investigator ruin your divorce case. Your investigator is your agent and their investigation is subject to sanction if improper. “Rule 219(d) specifically provides that sanctions may be imposed where a party wilfully attempts to obtain information by an improper discovery method.” Martzaklis v. 5559 Belmont Corp., 510 NE 2d 1148 – Ill: Appellate Court, 1st Dist. 1987 “The court may order that information obtained through abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.” Ill. Sup. Ct. R. 219(d) The ”use of an investigator to “interview” witnesses does not fall clearly under Supreme Court Rule 201 (87 Ill.2d R. 201), which governs general discovery provisions, [but] we find that the activities engaged in were sufficiently akin to discovery to be sanctionable under Rules 219(c) and (d).” Martzaklis v. 5559 Belmont Corp., 510 NE 2d 1148 – Ill: Appellate Court, 1st Dist. 1987 If you are truly considering hiring a private investigator for your Illinois divorce case, you probably just need a better divorce lawyer. Contact my Chicago, Illinois family law firm to discuss your divorce with an experienced Illinois divorce attorney. Via https://rdklegal.com/private-investigators-in-an-illinois-divorce/ Cameras are ubiquitous in society. People even put cameras in their own houses, “nanny cams.” People also put cameras outside their houses, “ring doorbells.” Actually, everyone carries cameras with them all the time, “smart phones.” The problem is that recording people when they do not know they are being recorded is a crime in Illinois. “A person commits eavesdropping when he or she knowingly and intentionally: (1) Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording all or any part of any private conversation to which he or she is not a party unless he or she does so with the consent of all of the parties to the private conversation.” 720 ILCS 5/14-2(a)(1) The inclusion of the word “surreptitious” was included after the previous statute (which did not requiring the eavesdropping device to be hidden) was declared to be unconstitutional. People v. Clark, 6 NE 3d 154 – Ill: Supreme Court 2014. So, the “surreptitious” element is important. Is a nanny cam surreptitious? Is a ring doorbell surreptitious? Is a cell phone camera surreptitious? “For purposes of this Article, “surreptitious” means obtained or made by stealth or deception, or executed through secrecy or concealment.” 720 ILCS 5/14-1(g) A nanny cam, if visible, creates footage which is not “made by stealth or deception” A ring doorbell camera is always pretty obvious (how else are you going to find it to ring it) and, therefore, not surreptitious. Likewise, a cell phone camera, if the other party can see it, is not surreptitious. Furthermore, if the nanny cam doesn’t record sound…the video alone is not eavesdropping because, under the statute, an “eavesdropping device” records sound. “An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.” 720 ILCS 5/14-1(b) Am I suggesting that you put cameras all over your house in order to catch your spouse doing something nefarious? ABSOLUTELY NOT. Use some common sense. In their houses, people scratch themselves in places they would not scratch in public. People walk around naked. People have sex in their houses. Catching adultery on camera is pointless at best and a possible civil suit at worse. Cameras in the house may not be a crime but they probably constitute the tort of invasion of privacy. “The elements of the cause of action [for invasion of privacy] typically are stated as: (1) the defendant committed an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and suffering.” Busse v. Motorola, Inc., 813 NE 2d 1013 – Ill: Appellate Court, 1st Dist., 2nd Div. 2004 It is easy to see how almost any camera footage taken in the privacy of almost any home would satisfy each of those elements. The recorded spouse can then sue the recording spouse within the divorce. “A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1 Now your case is no longer about the division of assets, support and parenting time but rather about whether you are a “peeping tom.” If a picture is worth a thousand words…think about what a secret photo or video of your spouse really says: that you are obsessed with your spouse and do not respect their privacy or dignity as a person. If you insist on presenting the court with footage or recordings of your spouse, you must properly authenticate the video or recording in order for the court to enter it into evidence. If you want your spouse to say or do something dumb, just text them about it. If your spouse really is dumb, I am sure they will happily admit to whatever you want in writing via text. If you have privacy concerns regarding cameras in or outside your home during your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/nanny-cams-in-an-illinois-divorce/ You cannot make an omelet without breaking an egg and you can’t get a final judgment for dissolution of marriage without proving to the court that the Respondent was personally served. “After the filing of the petition, the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411 To serve is “to present (a person) with a notice or process as required by law” Black’s Law Dictionary (11th ed. 2019). The point of service is to bring a person under the personal jurisdiction of the court. Personal jurisdiction is “A court’s power to bring a person int its adjudicative process; jurisdiction over a defendant’s personal rights, rather than merely over property interests.” Black’s Law Dictionary (11th ed. 2019). “To enter a valid judgment, a court must have both jurisdiction over the subject matter and jurisdiction over the parties. A judgment entered by a court without jurisdiction over the parties is void and may be challenged at any time, either directly or collaterally….”Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party’s voluntary submission to the court’s jurisdiction.” BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (citations omitted) If you don’t have service…you don’t have a viable divorce case. ‘When a defendant has not been served with process as required by law, the court has no jurisdiction over that defendant and a… judgment entered against him or her is void.” JPMorgan Chase Bank, National Association v. Ivanov, 2014 IL App (1st) 133553 Service only happens if you follow the rules EXACTLY as they are written. “[T]he service of copies of pleadings shall be according to rules.” 735 ILCS 5/2-201 “It is well settled that strict compliance with statutory requirements in effecting service is essential for the court to obtain personal jurisdiction over the defendant. ” Doe v. Logan, 2021 Ill. App. 191447, 6-7 (Ill. App. Ct. 2021) In an Illinois divorce, personal service is achieved by physically giving the summons directly to the Respondent or leaving it at their home “usual place of abode.” “Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode” 735 ILCS 5/2-203(a) Nowhere is email mentioned in regards to service according the Illinois Code Of Civil Procedure. “[T]he relevant statutory provisions and supreme court rules do not authorize service of process by email.” IN RE ADOPTION OF MAE, 2022 IL App (5th) 210291 – Ill: Appellate Court, 5th Dist. 2022 Therefore, service cannot be done by email in an Illinois divorce. All other types of notice, however, probably can be effectuated by email communication. Acceptable Service or Notice By Email In An Illinois Divorce “If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.” Ill. Sup. Ct. R. 11(a) In an Illinois divorce, if there is an attorney with an appearance on file, that attorney can receive service and notice via email. Anything after service of the summons needs service/notice “Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared” Ill. Sup. Ct. R. 104(b) If the party is not defaulted or willing to be defaulted, they will have filed an appearance either personally or through an attorney. That appearance will have an email address on it that allows all future service to occur via email. “An attorney must include on the appearance and on all pleadings filed in court an e-mail address to which documents and notices will be served in conformance with Rule 131(d).” Ill. Sup. Ct. R. 11(b) The documents filed, served and/or noticed must likewise have emails for counter-service. “All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.” Ill. Sup. Ct. R. 131(d)(1) If there’s not an attorney on the other side in an Illinois divorce but the party has filed their own appearance, they can also be served or noticed via email. “A self-represented litigant who has an e-mail address must also include the e-mail address on the appearance and on all pleadings filed in court to which documents and notices will be served in conformance with Rule 131(d).” Ill. Sup. Ct. R. 11(b) If a self-represented, pro se, party wants to file, serve and/or notice anything. They must let the opposing party know they can be served via a specific email. “All documents filed or served in any cause by a self-represented litigant upon another party shall bear the self-represented litigant’s mailing address and telephone number. Additionally, a self-represented litigant who has an e-mail address must designate a single e-mail address to which service may be directed under Rule 11. If a self-represented litigant does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.” Ill. Sup. Ct. R. 131 (d)(2) Furthermore, the Circuit Clerk of the County you are being divorced in will also provide notice electronically (is there a different electronic notice that is not email?) “The circuit clerk may provide notice to a party by hard copy or by electronic notice, pursuant to a uniform and standard policy adopted by the circuit clerk. A recipient may elect to receive notices by hard copy or electronically via the electronic address he or she has registered with the circuit clerk. The clerk must provide notice in the format chosen by the recipient. When providing notice electronically, the circuit clerk shall maintain a copy of the electronic content and a delivery receipt as part of the records of his or her office. Administrative communications of either the clerk or the court are not subject to the electronic notice requirements. If all policies and statutes are complied with, electronic notices shall have the same effect as hard copy notices.” 705 ILCS 105/12.1 (emphasis mine) All post-summons communication via email is likely to be deemed acceptable notice. “[S]ome notice, however informal, is greatly to be preferred to none at all.” (Internal quotation marks omitted.) Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 521 (1995) After all, what is better notice than an email? An email is a permanent self-verifying record of information and where and when the communication was sent. Post-Judgment Notice In An Illinois Divorce After an Illinois divorce is over, the automatic acceptability of email is no longer viable after 30 days…because the attorney’s representation expires after 30 days. “The attorney-client relationship terminates after the judgment of divorce is entered. The notice required after judgment is to the parties and not to their attorneys.” In re Marriage of Ponsart, 118. App. 3d 664, 665 (Ill. App. Ct. 1983 You really have to serve any post-judgment motions to enforce or modify via personal or substitute service. Most people simply show up and submit themselves to service if they receive an email notice of a motion. They know their ex-spouses are not going to give up so they might as well get the litigation over with. If you have noticed something up via email and think the “show must go on” as it is the 21st century. If you’ve only gotten an email about your Illinois divorce and nothing else, you probably are not under the jurisdiction of an Illinois divorce court. Either way, contact my Chicago, Illinois family law firm to discuss this matter with an experienced Illinois divorce attorney. Via https://rdklegal.com/service-or-notice-by-email-in-an-illinois-divorce/ Depositions are intimidating. Unlike other forms of discovery, there is no advanced written warning of what the questions in a deposition will be. The deponent must be prepared to answer the questions honestly. “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1) (emphasis mine). Deposition questions can be anything without almost any limit as to the nature of the questions. With the sheer volume of issues possible in an Illinois divorce, the possible questions are limitless and may be unknown…until they are finally asked under oath. A deponent (the person being asked the questions) has the right to bring counsel to their deposition. That counsel may object to any question as the question comes up. “Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 206(c)(3) There is really only two objections at an Illinois deposition: 1) “Could you please rephrase the question for clarity?” and 2) “Privilege” “When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n) If a question calls for information which could be deemed privileged, the deponent’s lawyer can politely say, “I’m not allowing my client to answer…[so] certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009 The judge can later decide if the question really did call for privileged information. Beyond the ability to instruct a deponent to not answer a question under the one objection of privilege, can a lawyer confer with the deponent about how to answer a deposition question? The deponent is supposed to tell the truth and nothing but the truth. “The officer before whom the deposition is to be taken shall put the witness on oath” Ill. Sup. Ct. R. 206(f) What would be the point of talking to a deponent who is under oath to tell the truth except to request that the deponent NOT tell the truth. “A lawyer shall not…counsel or assist a witness to testify falsely” Ill. Sup. Ct. R. 3.4(b) “[A]n attorney who procures false evidence, knowing it to be false, with the intention of deceiving the court and thus interfering with the due administration of justice, is … guilty of contempt of court.” Beattie v. People, 33 Ill. App. 651 (1889) While there is no Illinois state case law on the subject, there is plenty of persuasive federal law about lawyers conferring with their clients during a deposition. “Because a deposition generally proceeds as at trial, courts have held that once a deposition starts, counsel has no right to confer during the deposition.” LM INSURANCE CORP. v. ACEO, INC., Dist. Court, ND Illinois 2011 A lawyer talking to a deponent during scheduled breaks or when a question is not pending is probably okay. A lawyer interrupting a deposition to discuss with the deponent whether to assert privilege is definitely allowed. “[T]he blanket prohibition on conferences between defense counsel and Defendant Northrup is contrary to law. Even the most restrictive of the cases that have addressed restrictions on conferences between a deponent and his lawyer during a deposition has allowed such conferences when the purpose of the conference is to decide whether to assert a privilege. Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D. Penn. 1993) (prohibiting any conferences between a deponent and his lawyer except when the purpose of the conference is to decide whether to assert a privilege). Moreover, several cases have held that the Hall case goes too far by prohibiting any conferences except when the purpose of the conference is to decide whether to assert a privilege. For example, In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998), the court agreed with the Hall court’s goal of preventing the coaching of witnesses but declined to adopt the Hall court’s “strict requirements.” Id. at 621. The Stratosphere court held: “This Court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between questions and answers, the Court is confident that the search for truth will adequately prevail.” Id.; see also McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (following Stratosphere); see, e.g., Ecker v. Wisconsin Central Ltd., 2008 WL 1777222, at *3 (E.D. Wisc. 2008) (finding that “mere fact that counsel for the defendant privately conferred with the witness during a break after the plaintiff completed his examination does not warrant sanctions,” but also suggesting that private conferences that occurred when opposing counsel was questioning the witness or when a question was pending would be improper). In addition, the American Bar Association, in its 2004 Civil Discovery Standards, takes the position that an attorney for a deponent may have a private conference with the deponent during the deposition only to “determine whether a privilege should be asserted or to enforce a court-ordered limitation on the scope of the discovery.” ABA Civil Discovery Standards, p. 34. The ABA also takes the view that an attorney for the deponent can communicate with the deponent during a recess. Id.” Murray v. NATIONWIDE BETTER HEALTH, Dist. Court, CD Illinois 2012 But, both the rule…and all the exceptions to the rules about a lawyer conferring with a deponent are Federal case law. The keen reader will note that my articles ONLY cite Illinois state case law when possible. That is because ALL Illinois state appellate decisions are binding on Illinois trial courts. All Illinois case law is good Illinois case law (unless there is other, more recent Illinois case law that says otherwise). “A decision of the appellate court, though not binding on other appellate districts, is binding on the circuit courts throughout the State.” State Farm Fire and Cas. Co. v. Yapejian, 605 NE 2d 539 – Ill: Supreme Court 1992 “Illinois’ “internal” choice of law rule is that a state trial court is bound by the decisions of all the intermediate Appellate Courts.” Commercial Discount Corp. v. King, 552 F. Supp. 841 – Dist. Court, ND Illinois 1982 A binding case law precedent is one “that a court must follow.” Black’s Law Dictionary (11th ed. 2019)(emphasis mine) Any non-Illlinois appellate decisions (such as the ones I’ve cited above regarding counsel conferring with their client during a deposition) are merely persuasive on an Illinois trial court. A persuasive precedent is “a precedent that is not binding on a court , but that is entitled to respect and careful consideration.” Black’s Law Dictionary (11th ed. 2019)(emphasis mine) “It is well settled that federal decisions are not binding on Illinois state courts. Despite the nonbinding nature of federal decisions, they can be considered to be persuasive authority, and they may be followed if the state court believes the federal analysis to be reasonable and logical.” Werderman v. Liberty Ventures, LLC, 857 NE 2d 320 – Ill: Appellate Court, 2nd Dist. 2006 (Citations Omitted) So, a lawyer can stop the deposition and talk to their client…or not. It is not crystal clear what exactly is allowed during a deposition. A better solution is to properly prepare the deponent in advance of the deposition. Will the questions really be that much of a surprise? Is the truth that variable? If you are getting deposed in an Illinois divorce…you are in pretty deep litigation. Contact my Chicago, Illinois family law firm to discuss your case with an experienced Illinois divorce attorney. Via https://rdklegal.com/can-a-lawyer-talk-to-a-client-during-a-deposition-in-illinois/ Depositions are powerful. In a deposition, the opposing counsel can ask a person any kind of question under oath with zero warning as to the substance of the questions with no one supervising the appropriateness of the questions. “Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions” Ill. Sup. Ct. R. 201(a) “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1) In an Illinois divorce, depositions can be requested with little notice. Even the time of the deposition is determined by the party conducting the deposition (technically). “A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. The notice shall state the time and place for taking the deposition; the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify the deponent.” Ill. Sup. Ct. R. 206 In reality, the party taking the deposition and the deponent should work together to find an appropriate time to schedule the deposition. “The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery.” Ill. Sup. Ct. R. 201(k) If the person getting deposed, the “deponent,” does not wish to be deposed, they may file a motion to quash the deposition subpoena requiring their attendance. If a motion to quash is not filed and the deponent does not appear for the deposition…the deponent can be held in contempt of court and the court can issue a body attachment (a civil order of arrest). Depositions are a discovery tool and discovery is allowed liberally in Illinois civil procedure. “It is well established that Illinois Supreme Court rules permit liberal pretrial discovery.” Dufour v. Mobil Oil Corp., 301 Ill. App. 3d 156, 160 (Ill. App. Ct. 1998) The only way to stop a deposition is by filing a motion to quash said deposition. “When a conflict does arise and an attorney feels his adversary’s discovery request is unreasonable or oppressive, he should not dig his heels in and become recalcitrant. He should seek the protection of the trial court.” Payne v. Coates-Miller, Inc., 386 NE 2d 398 – Ill: Appellate Court, 1st Dist. 1979 “Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery shall not operate to delay any other party’s discovery.” Ill. Sup. Ct. R. 201(n) “Conversely, if an attorney feels an adversary is unreasonably impeding the progress of pretrial discovery, his proper recourse is to enlist the aid of the trial judge. Generally, if the attorney’s discovery request is legitimate, the trial judge will order the other party’s compliance. A refusal to obey such a discovery order strikes at the very life-line of the court.” Payne v. Coates-Miller, Inc., 386 NE 2d 398 – Ill: Appellate Court, 1st Dist. 1979 The best argument to stop discovery is that the information being requested can be found in other documents. Therefore, the deponent’s time need not be consumed with duplicative questions in a deposition. “Duplication of discovery methods to obtain the same information and discovery requests that are disproportionate in terms of burden or expense should be avoided.” Ill. Sup. Ct. R. 201(a) This is what makes depositions different from other discovery requests…you have no idea what the questions will be. So, it is very hard to object to a question you are not yet aware of. Similarly, it is difficult to insist that a deposition is for the purposes of harassment when the deposition questions remain unknown. “[T]he power [to order a party to appear] should only be exercised for good cause and in such manner that a party may not be subjected to harassment, oppression or hardship.” Oakview New Lenox Sch. Dist. v. Ford Motor Co., 378 NE 2d 544 – Ill: Appellate Court, 3rd Dist. 1978 (citations omitted) At best, you can limit types of questions via a motion. “Proportionality. When making an order under this Section, the court may determine whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Ill. Sup. Ct. R. 201(c)(3) Furthermore, a deponent can request that any answers will remain secret via a protective order. “The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” Ill. Sup. Ct. R. 201(c)(1) If you truly believe that a deposition will be harassing, you can request that the judge supervise the deposition. “Upon the motion of any party or witness, on notice to all parties, or on its own initiative without notice, the court may supervise all or any part of any discovery procedure.” Ill. Sup. Ct. R. 201(c)(1) There is no chance that a judge will take time out of their schedule to supervise a deposition. Judicial supervision is overkill. If you do not want to answer a deposition question…you can simply refuse. “Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 206(c)(3) Most trial objections like “relevance“, “hearsay“, “calls for a legal conclusion” do not apply in a discovery deposition. “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules.” Ill. Sup. Ct. R. 206(c)(1) “Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order.” Ill. Sup. Ct. R. 206(e) “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules.” Ill. Sup. Ct. R. 206(c)(1) The only real objection in a deposition is that the information requested is privileged. “When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n) If the deponent’s lawyer has “objections to the questioning during the deposition, he [or she] should state, “I’m not allowing my client to answer based on the Judge’s ruling” and certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009 That singular objection does not stop the deposition…only that particular question. “If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer.” Ill. Sup. Ct. R. 219(a) In extreme cases, a series of questions may be deemed harassing. In such a case, a deposition can be suspended pending the filing of a motion explaining why the deposition was suspended. “At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules.” Ill. Sup. Ct. R. 206(e) At the time of the hearing, you will finally be able to present the judge with the previously mysterious and now obviously harassing questions. Knowledge of the actual questions will allow the judge to limit further questions or prevent any further depositions. “Discovery is not a tactical game to be used to obstruct or harass the opposing litigant.” Mistler v. Mancini, 443 NE 2d 1125 – Ill: Appellate Court, 2nd Dist. 1982 “An examination terminated by the order shall be resumed only upon further order of the court.” Ill. Sup. Ct. R. 206(e) If the court found the suspension of the deposition improper (or the questions harassing), the court may levy attorney’s fees against the appropriate party. “The court may require any party, attorney or deponent to pay costs or expenses, including reasonable attorney fees, or both, as the court may deem reasonable.” Ill. Sup. Ct. R. 206(e) Finally, a divorce judge’s decision about discovery will be unappealable unless “no reasonable person could adopt the view taken by the circuit court.” Skolnick v Altheimer & Gray, 191 Il12d 214 (2000) Sitting for a depositions is not fun. Be sure that you have an Illinois divorce attorney who understands what is allowed during a deposition (almost everything) and what is not (or is at least willing to stop the deposition…temporarily). Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney today. Via https://rdklegal.com/preventing-harassing-depositions-in-an-illinois-divorce/ |
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