If My Wife and I are Sued Together, Do We Both Have to go to Court?

If My Wife and I are Sued Together, Do We Both Have to go to Court?

Last updated: October 2009

Note:The Illinois Marriage and Dissolution Act and Paternity Act changed on January 1, 2016. The most up-to-date information can be found in the following articles: Parentage (formerly Paternity), Divorce, Allocation of Parental Responsibilities (formerly Custody), Parenting Time (formerly Visitation), and Child Support.

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 September 22, 2009.

Q:    My wife and I got sued in small claims court.  I went to court to request a trial because I don’t think we owe anything.  My wife couldn’t miss work, so I tried to tell the judge she denied owing the money, too.  The judge entered a default judgment against her because she wasn’t there.  Is that right?  Why couldn’t I tell the judge we both denied the debt?

A:    You probably should have been able to.  Spouses are the only people who can go to court for someone else if they’re not a lawyer.  But only when they’re sued together.

The law that applies is part of the Illinois Rights of Married Persons Act, which until 1992 was called the Rights of Married Women Act.  It was originally passed in 1874, to officially recognize that married women had the legal capacity to do things like own property and enter into contracts.  Until then, Illinois law treated married women like minors, without the legal capacity to act for themselves.

Single women might have had legal rights back then, but those merged into their husband’s upon marriage.

The part of the current law dealing with lawsuits says:  “If husband and wife are sued together, either may defend for his or her own right and, if either neglects to defend, the other may defend for both.” 

The law has never been interpreted by any appellate courts, so the text by itself is all we have for guidance.  But the law’s plain language pretty clearly says you had the right to “defend for both” yourself and your wife.

Your wife could file a motion to vacate, or undo, the default judgment against her.  She’d be representing herself, “pro se.”  She could refer to the Right of Married Persons Act, and how it should have permitted you to present her denial. 

In general, a motion to vacate a default judgment that’s filed within 30 days of that judgment should have a very good chance of success.  The law prefers for cases to be decided on their merits, after each side has had their say, rather than one-sidedly by default.

After 30 days, however, it gets harder to undo default judgments.

You might be able to file a motion to vacate on behalf of your wife, and try to appear for her at a court hearing on that motion.  But maybe that’s going beyond just defending.  Having your wife file her own motion, on her own behalf, would be less complicated.

Going to court for someone else is the practice of law.  The Illinois Attorney Act says that “No person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State.”  So, without a law license, or being married to a co-plaintiff or co-defendant, you can’t show up in court for other people.

Individuals can always represent themselves.  That’s the “pro se” mentioned above.  The Attorney Act says “Plaintiffs shall have the liberty of prosecuting, and defendants of defending in their proper person.” 

Parents can’t even represent their minor children.  That’s to help ensure, as one federal court said, “that children rightfully entitled to legal relief are not deprived of their day in court by unskilled, if caring, parents.” 

In traffic court, though, parents can sometimes be required to accompany—but not represent—their children in court. 

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