Can I Move My Divorce Case to the County I Live In?

Can I Move My Divorce Case to the County I Live In?

Last updated: June 2009

The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This article was published on July 29, 2008.

Q:    I just got served with a Summons and a Petition for Divorce.  It was filed in a county where neither my spouse or live.  That county isn’t that far away, but I’d rather deal with the divorce where I live.  What’s the law on where a divorce can be filed?  Can I get the case changed to the county where I live?

A:    You’re talking about “venue,” which is legalese for the correct county where a court case should be filed.  There can be two correct counties in a divorce case, if the parties live in different counties.  But if both spouses live in the same county, that’s where it should be filed.

However, you have to speak up about the case being filed in the wrong county.  If you don’t, you lose your chance to change it.

The Illinois Marriage & Dissolution of Marriage Act says that “the proceedings shall be had in the county where the plaintiff or defendant resides.” 

Technically, the person who files for divorce is called the “Petitioner” (not plaintiff), and their spouse is the “Respondent” (not defendant).  But the main idea is that a divorce can be filed where either spouse resides.

The Act goes on to say that “objection to venue is barred if not made within such time as the defendant’s response is due.”  Since the Respondent in a divorce has 30 days to respond after they’re served with a Summons a copy of the Petition for divorce, you have 30 days to file some objection to incorrect venue.

One way to do that is to file a motion to transfer the case to your county.  In your case, you can point out that neither party resides in the county where the case was filed. 

You’d eventually have a hearing in court, in front of a judge, where each side got to present evidence or arguments about where they resided.  If the judge is persuaded nobody resided where the case was filed, it should be transferred.  You’d then go to court where you live.

What “resides” means can get complicated.  But if nobody ever lived where the case was filed, it would be hard for them to have resided there.

For purposes of deciding exactly when someone resided somewhere for purposes of correct venue, court cases offer three possible dates:  when the case was filed; when the summons was issued; or when you got served.  In most cases, though, it’ll be the date the case was filed.

As the law says, if you don’t object to incorrect venue, the case stays where it was filed.  So if you want to change counties, you must ask, in writing.

That’s how couples can get divorced far away from where they live.  Often, both spouses want to try to keep things quiet, or make it hard for locals to snoop through their divorce file.

Older cases invalidated divorces where venue was improper.  For example, a 1937 case declared null and void a 1909 divorce, because the husband didn’t live where he had filed. 

(Speaking of olden times, until at least 1975, a law said cases should be filed where the husband resided.)

Since 1982, though, no appellate court has invalidated a divorce for improper venue.  For example, a 1983 case said a 1977 divorce couldn’t be invalidated in 1981, even though nobody lived where the 1977 case was filed.
 

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