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Res Judicata in Divorce Cases in Illinois

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we explain res judicata in divorce cases in Illinois.  We answer the question, “what is res judicata?” and discuss whether res judicata applies to child custody, child support, spousal maintenance and property division.  will also discuss res judicata and property division.

What is Res Judicata?

The Latin translation of res judicata is “thing adjudicated.”  As it applies to the law, res judicata is a reference to a matter that has already been presented in court and received a final judgement.  In accordance with the law, res judicata states that parties cannot litigate a second lawsuit on the same claim or any other claim relating to the first one that could have been brought up during the first suit but was not.  There are three criteria that must be met in order for res judicata to apply for your case, and they are as follows:

  1. An identity of cause of action exists, meaning that the new claims are claims that were made or could have been made in a previous suit;
  2. A final judgement on the merits as already been rendered by a court with jurisdiction; and
  3. The parties or their privies are identical in both actions.

Res Judicata in Divorce Cases in Illinois

Res Judicata can only apply to certain topics in the Dissolution of Marriage Decree.  Any of the following topics cannot be subject to res judicata:

  • Child custody and parenting time orders;
  • Child support; and
  • Spousal maintenance/alimony.

Res judicata cannot be applied to any situation where a “substantial change in circumstance” could cause the previous order to be modified. 

Res Judicata and Property Division in Illinois DIvorce

Res judicata does apply to the division of assets and liabilities as part of a divorce.  Once the division of assets has been ruled upon, the issue cannot be reopened without proof of fraud, duress, mistake, or newly discovered evidence.  However, the fact that res judicata bars parties from relitigating asset division does not preclude the parties from filing an appeal with the appellate court.

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What is Res Judicata?

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