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Filing a Motion to Dismiss an Illinois Divorce Case

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
July 2, 2020

In this article, we discuss how Motions to Dismiss work in Illinois divorce cases and answer the following questions:

  • How do I file a Motion to Dismiss my spouse’s petition for dissolution of marriage?
  • For what reasons can a petition for dissolution of marriage be dismissed?
  • How can I dismiss my spouse’s motion in an Illinois divorce case?
  • Can I dismiss my own petition for dissolution of marriage in Illinois?

How Do I File a Motion To Dismiss My Spouse’s Petition For Dissolution of Marriage In Illinois?

Married couples get divorced for all sorts of reasons, but while most of those couples may agree they don’t want to be around each other anymore they may not agree on how to move forward with a divorce. Often, an individual will file a petition for dissolution of marriage in Illinois while his or her spouse is in disagreement with the reasons for the divorce or wants to stay married. For whatever reason, if there is disagreement on moving forward the spouse can file a Motion to Dismiss the divorce.

First, before filing a Motion to Dismiss a divorce case, it’s important to understand on what legal grounds a petition for dissolution of marriage is based. A petition for dissolution of marriage in Illinois requires the following seven items to be valid:

  1. Date and location the married was registered;
  2. Age, occupation, place of residence and amount of time living in Illinois;
  3. Whether this is the sole petition for dissolution of marriage or if there is another petition still pending in another state;
  4. Jurisdictional requirements are met and that irreconcilable differences have caused the irretrievable breakdown of the marriage;
  5. Names, ages, addresses of all children of the marriage, and if one spouse is pregnant.
  6. Arrangements for child care, spousal support, parental responsibility, etc; and
  7. The relief sought in the case.

For obvious reasons, the Motion to Dismiss must be filed before the final divorce judgment is handed down by the judge.

For What Reasons Can A Petition For Dissolution of Marriage Be Dismissed?

A Motion to Dismiss must list a factual problem with the original petition for dissolution of marriage. It’s not enough to make the argument that you were getting along great with your spouse last week so there is no irreconcilable difference. The judge will see that as a lame excuse and make the point that irreconcilable differences must have been present for an extended period of time to lead to the petition for divorce.

Another reason for dismissing a petition for dissolution of marriage based on an error in the pleadings (reasons stated/paperwork) is to argue that any one or more of the seven items listed above are incorrect. This would be a perfectly valid reason to grant a Motion to Dismiss, however, the spouse can simply file an amended petition for dissolution and the case will continue forward. Other reasons for dismissing a divorce case include:

  • Motion to Dismiss Based On Jurisdiction. This is one pretty common and covers Motions to Dismiss based on the fact that one or both of the individuals have not lived in Illinois for more than 90 days. However, after 90 days the petition can simply be refiled, or the motion may not be granted till after 90 days, by which it is no longer valid.
  • The Plaintiff or Defendant Lacks Legal Capacity. This reason for dismissal is mostly seen in individuals who are mentally unable to make decisions for themselves and often the one spouse will have to file a motion for guardianship of the other before moving forward with a dissolution of marriage.
  • Motion to Dismiss Based On Other Affirmative Matter. This type of motion states that there is another legal issue currently, or was at the time of the marriage. A common example is stating that the divorce can’t happen because the couple was never married in the first place. However, in this case it’s better to file a petition for Invalidity of Marriage. Legal arguments for invalidating a marriage include 1) Lacked capacity at the time of the marriage or was induced to enter into the marriage under duress or by fraud; 2) a party lacked the ability to physically consummate the marriage and the other party was unaware; 3) a party was underage at the time of the marriage; 4) the marriage was prohibited under law.

How Can I Dismiss My Spouse’s Motion In an Illinois Divorce Case?

Most of the time there’s not much you can do to dismiss a motion filed by the other party, you just have to hear the motion and move forward with the appropriate action. The good news is that a party can’t simply file motion after motion in an attempt to prolong the case. Your party has to provide some kind of response to the motion and it’s encouraged to provide a counterargument to whatever points are made by the opposition in their Motion to Dismiss.

Can I Dismiss My Own Petition For Dissolution of Marriage In Illinois?

This may sound like a silly question, who would want to dismiss their own petition for divorce? It’s actually quite common, if only for the number of couples who have a change of heart and work things out. However, there are many reasons for filing a strategic Motion to Dismiss, these may include:

  • Either party just needs some breathing room from the divorce, each other, etc.
  • The parties are having a hard time working out a custody schedule; or more commonly
  • The divorce isn’t going the way one party wants.

Dismissing your own petition for dissolution of marriage is simple and doesn’t require the permission of the other party. All you must do is let the judge know. Often on the first day of the hearing the party looking to dismiss their own petition will say so to the judge and the dismissal will be granted. However, the other can “block” this dismissal by filing a counter-petition for dissolution of marriage. Even in this situation, nothing has to happen with the divorce for up to 6 months and at that point an extension can be granted for up to one year.

If the divorce is going poorly and you feel that things won’t work out well for you in the end, you can opt to dismiss the petition for marriage dissolution. Again, permission from the other side is unnecessary. However, in many cases, the opposite party will have already filed a counter-petition for dissolution of marriage in order to avoid the headache of having to file another petition for dissolution of marriage and risk getting assigned a new judge.

Another reason one party may want to dismiss their petition for divorce is they realize they don’t want a key piece of information coming out about them in discovery. This could be a business deal, whether legal or not, or some other bit of information that may incriminate them or make them look bad in the eyes of the public. If you feel your spouse is trying to dismiss the case because something will come out in discovery you can pursue legal action against them.

Divorce can be an ugly, bitter, drawn-out process with either side pulling out all the stops to get the result they want. Your best chance of getting a positive, or at least amicable outcome, is to have an experienced divorce attorney in your corner. If you have any questions about divorce give us a call at 630-324-6666.

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