Motion of Default in a Divorce in Illinois
By Anna Assad
You may file a motion of default in an Illinois divorce case if your spouse doesn't respond to your divorce petition. If the judge grants your motion, your divorce case moves forward and you'll get a final divorce judgment without your spouse's participation or signature. Procedures for a motion of default vary slightly in the different Illinois circuit courts, but some parts of the process are the same.
Before you file a motion for default, you must properly serve your spouse. If you know where your spouse is, you must have a sheriff from your county's sheriff office personally serve your spouse the divorce papers, including the petition. The sheriff will send you an affidavit once your spouse is served. If your spouse doesn't respond, by filing an answer to your petition in court within 30 days after receiving the papers, you may file a default motion.
If the judge approved your request to serve your spouse by publication in a newspaper --usually allowed if you don't know where your spouse is, for example--you'll receive a default date from the court. Once that date passes, you're allowed to file a motion for default if your spouse didn't answer.
Filing the Motion
You need the certificate of dissolution, motion for default and notice of hearing forms if you're filing a motion for default. Once you file the forms and pay the fees--fee amounts depend on the Illinois county--you'll receive a court date for your default motion. You have to mail two sets of completed, court-stamped copies of the forms you filed to your spouse at his address. If you served your spouse by publication, you mail the forms to his last known address.
Read More: Motion Vs. Petition
You must attend the hearing and go over the facts of the case with the judge, such as what date your spouse received the divorce papers or the dates you ran the notice in the newspaper; this is known as a "prove up." Bring any other forms the court requires you to bring to the hearing for the judge to sign--such as a dissolution of marriage form--and copies of all forms filed and paperwork used to prepare them, such as your pay stubs. If the judge grants your default motion, he'll sign the divorce judgment and your divorce will be complete. You'll have to mail the judgment to your spouse and file a certificate of mailing with the court.
A judge can overturn your default divorce judgment if your spouse petitions the court within 30 days of its entry and has a reason for not responding that the judge accepts.
If you have children and the judge gives you a support order, you must mail a copy of the Uniform Order for Support to the address shown on the order for your county.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.