Friday, January 28, 2011

Filing for Divorce in Bloomington Illinois before Residing in the State for 90 days.

By: Jon D. McLaughlin[1] and Alexander E. Preller[2].

Despite popular opinion, a person need not reside in Illinois for 90 days before the filing of a petition for dissolution of marriage.  A petitioner is only required to reside in Illinois for more than 90 days before the court enters a judgment of dissolution.


It is likely that even experienced family law attorneys will respond in the negative when asked if a petitioner can file for a divorce without living in this State for at least 90 days. However, it is clear, from all authorities that the authors have seen, that a petitioner may file a petition immediately after establishing residency in Illinois, without waiting for 90 days to pass. The 90-day requirements under § 401(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) are in the alternative—neither are necessary, but either one is sufficient to establish subject matter jurisdiction.[3]

Section 401(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states in part that:

The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding.[4]

For purposes of this article, I will call the first of these requirements the 90-day-before-filing requirement, and the second the 90-day-before-finding requirement.[5] The 90-day-before-filing requirement is self-explanatory.[6] The 90-day-before-finding requirement is where some clarification is needed. The 90-day-before-finding simply means that the petitioner must be a resident of this State for 90 days before the final decision on her petition is entered.[7]

It is equally clear that even if a respondent files a motion to dismiss before the petitioner has achieved her 90 days, it is of no consequence. If a respondent were able to dispatch a case that easily, it would render the 90-day-before-finding language meaningless—a respondent could simply wipe that part of the statute away with a motion to dismiss. Surely, this was not intended by our legislature.

When a petition for dissolution is filed, it is the petitioner's burden to prove her entitlement to the relief requested—primarily, dissolution. This is accomplished through the petitioner's "proving-up" of the allegations in her petition.[8] When the petitioner wishes to prove-up her petition, under the 90-day-before-finding alternative, she must establish that she has been a resident of this State for at least 90 days before the finding on her petition for dissolution (the judgment of dissolution) is entered.

To file a motion to dismiss before a judgment of dissolution is entered is premature and is of no consequence. How could a respondent claim that the petitioner has not been a resident of this State for 90 days preceding the judgment if a judgment has not even been entered yet? The answer is simple; a respondent could not claim that a petitioner has not been a resident of this State for 90 days preceding the judgment until the judgment is entered. To state the foregoing in a more clear and succinct manner, it is impossible to dismiss a petition, for lack of residency, before a judgment is entered.

H. Joseph Gitlin, in his exhaustive and authoritative treaty on matrimonial law, states as follows:

The Section 401(a) of the IMDMA is taken directly from Section 302(a)(1) of the Uniform Marriage and Divorce Act [(Uniform Act)].   The Illinois Statue, as well as the Uniform Marriage and Divorce Act, recognizes the high degree of interstate mobility in our society.  Thus, under the IMDMA, a person need not reside in Illinois for ninety days before the filing of a petition for dissolution of marriage as long as the plaintiff has resided in Illinois for more than ninety days before the court finds that grounds for dissolution of marriage exist.  Since residency is a jurisdictional requirement, the judgment of marriage, or finding of grounds for dissolution of marriage, should state that one of the spouses was a resident of the state of Illinois for ninety days preceding the making of finding, or entry of judgment.


The ninety-days residency requirement, however, is in the alternative.  The other finding may be that one of the parties maintained residency in Illinois for ninety days preceding the commencement of the action.


Under Illinois' former Divorce Act, a person who had not fulfilled the residency requirement could not apply to the court for temporary relief (e.g., temporary support, alimony, custody, injunctive relief).  Such persons were therefore required to seek other forms of relief such as criminal nonsupport proceedings, habeas corpus proceedings, or injunctive relief.  Under the IMDMA, however, once an action for dissolution of marriage is filed, an application may immediately be made for temporary relief.  The Commissioner's Comment to Section 302(a)(1) of the Uniform Marriage and Divorce Act states: "One who has just entered the forum state may commence the proceeding immediately, thus enabling the court to enter such temporary orders as are necessary to protect the rights of the parties."[9]


The Second District weighed in on this exact issue in In re Marriage of Mates, 156 IllApp3d 26 (2nd Dist 1987).[10]  In Mates, the wife filed her petition after residing in Illinois for only one month. Just two weeks later, the wife filed her motion for temporary relief.[11] The husband then filed a motion to dismiss the action on the basis that the court did not have jurisdiction because the wife had not satisfied the residency requirement.[12] The trial court dismissed the action and denied the wife's subsequent motion to vacate the dismissal order. The Second District reversed the trial court.

The Mates court considered the commissioners' comment to the Uniform Act significant, and stated:

The commissioners' comment to section 302 states in part that '[o]ne who has just entered the forum state may commence the proceeding immediately, thus enabling the court to enter such temporary orders as are necessary to protect the rights of the parties.' (9A Uniform Laws Annotated sec. 302, Commissioners' Comment, at 122 (1979).) The implication from this comment that a petitioner may obtain temporary relief before residing in the forum State for 90 days is that 'findings' refers to the court's ultimate decision on the dissolution petition.[13]




The requirement that one of the parties to a dissolution action reside in Illinois at the commencement of the action and for 90 days either preceding the commencement of the action or preceding the making of the finding is to ensure a sufficient nexus between the forum State and the action. (See 9A Uniform Laws Annotated sec. 302, at 122 (1979) (commissioners' comment that one spouse must establish an appropriate connection with the State).)[14]


The Mates court also found that its opinion was supported by other Illinois case law interpreting § 401(a) of the IMDMA.[15]  In In re Marriage of Goslin, 106 IllApp3d 87 (4th Dist 1982), the trial court found that it lacked subject matter jurisdiction and dismissed the petition.[16]  The Fourth District reversed the trial court's dismissal, stating that the trial court had misinterpreted § 401 of the IMDMA.[17] The trial court erroneously held that it lacked subject matter jurisdiction. However, the 4th District stated that:

"[T]o comply with the jurisdictional requirements of the Act, one of the parties must have been domiciled in the State of Illinois for a period of 90 days prior to the court's final decision."[18]


The Goslin court not only reversed the trial court, but it instructed the trial court to allow the petitioner to amend her petition since the record was absent of any representation regarding her residence at the time of filing.[19] 

Also on point is federal case law from within our State.[20] In Davis v Davis, 638 F Supp 862 (ND Ill 1986), the petitioner had not been a resident of Illinois for 90 days preceding the filing of her petition. However, she had been a resident for 90 days preceding the entry of the decree.[21] The respondent sought to attack the subject matter jurisdiction of the trial court. The federal district court responded as follows:

[The respondent] seeks to…argu[e] the statute does not mean what it says on its face. Unable to find any case support for that odd proposition, Tracy says the absence of reported cases construing Section 401(a) casts its meaning into doubt.


But [the respondent] is all wrong. Section 401(a)'s 90-days-before-judgment provision has long been a part of the statute. Indeed, for many years the only Illinois jurisdictional requirement was residence here for 90 days before entry of the decree. Only in 1983 did the General Assembly amend Section 401(a) to add the 90-days-before-filing alternative (see Section 401(a), Supplement to Historical and Practice Notes, Ill.Ann.Stat. ch. 40, ¶ 401 (Smith-Hurd 1985 pocket part)). Thus a 90-day period of residence before entry of the decree is well-established as sufficient to support Illinois jurisdiction (In re Marriage of Weiss, 87 Ill.App.3d 643, 648-49, 42 Ill.Dec. 714, 719, 409 N.E.2d 329, 334 (1st Dist.1980)).


Hence Illinois unquestionably had jurisdiction over [petitioner]'s petition.[22]

Furthermore, the court can still rule on grounds for dissolution of marriage even if the petitioner has not satisfied the 90-day residency requirement.[23] In Hermann v Hermann, 219 IllApp3d 195, 196 (3rd Dist 1991), the petitioner had only lived in Illinois for about ten weeks when the trial court ruled on grounds, though the judgment of dissolution wasn't entered for another nine months.[24] The Third District upheld the trial court in a mirror opinion of Mates, holding that:

[T]he wife resided in Illinois for more than 90 days prior to the judgment of dissolution. Section 401(a) of the Illinois Marriage and Dissolution of Marriage Act requires a party to be domiciled in Illinois for 90 days prior to the court's final decision in order for the court to have jurisdiction. [Citation omitted]. The purpose of the 90-day requirement is to allow newly arrived litigants to petition for relief under the Act without having to wait 90 days. The 90 day wait between arrival and final judgment, however, is necessary in order to assure a sufficient nexus between the forum State and the action.[25]


Case law, and all other sources that the authors have reviewed, supports the position that a petitioner need not reside in Illinois for 90 days preceding the filing for divorce. The 90-day-before-filing condition is a sufficient, as opposed to a necessary, condition. Despite whether one proceeds under the 90-day-before-filing or the 90-day-before-finding condition, the necessary jurisdictional condition is that a petitioner must reside in Illinois for 90 days preceding entry of the judgment of dissolution, as stated by the Mates court. This time of finding is when a judgment of dissolution is entered.

Mates is directly on point. Mates is a Second District case that trial courts in the State are currently bound to follow,[26] and which the First and Third districts have upheld in its entirety.[27] Not only is there a lack of conflicting case law from another District to the Mates case, but the other Districts, such as the Fourth District case of Goslin, support the Mates conclusion.[28]

In sum, § 401(a) of the IMDMA, the Uniform Act, the drafters of the Uniform Act, the Appellate Court of the State of Illinois, federal case law, and a respected and followed treatise, all support the position that one may file a petition for dissolution before residing within the State for 90 days. These sources also support the logical conclusion that any motion to dismiss filed based upon the petitioner failing to satisfy the 90-day residency requirement should be denied on its face. Any other conclusion would render the statutory 90-day-before-finding alternative meaningless. The authors have not been able to find any authority to support any other conclusion.   






[1] Jon D. McLaughlin is an attorney with Allison & Mosby-Scott (Bloomington), limiting his practice to Divorce and Custody matters. He can be reached at or (309) 319-6206.

[2] Alexander E. Preller is a legal assistant with Allison & Mosby-Scott (Bloomington), scheduled to attend Columbia Law School in 2010. He can be reached at or (309) 838-0487.

[3] 750 ILCS 5/401(a). See In re Marriage of Brown, 154 IllApp3d 179 (4th Dist 1987), for a discussion on subject matter jurisdiction and personal jurisdiction in dissolution matters.

[4] 750 ILCS 5/401(a) (emphasis added).

[5] Id.

[6] Id.

[7] Id; See also In re Marriage of Mates, 156 Ill.App.3d 26 (2nd Dist 1987).

[8] 750 ILCS 5/401(a).

[9] H. Joseph Gitlin, Gitlin on Divorce: A Guide to Illinois Matrimonial Law, Vol1 §2-3 at 2-7 (LexisNexis 3rd ed 2009) (emphasis added).

[10] In Re Marriage of Mates, 156 IllApp3d 26 (2nd Dist 1987).

[11] Id at 27.

[12] Id at 27-28.

[13] Mates, 156 Ill.App.3d at 28 (1987) (emphasis added) (citing In re Marriage of Cox, 226 Mont176 (1987)).

[14] Mates, 156 IllApp3d at 29 (emphasis added).

[15] See In re Marriage of Weiss, 87 IllApp3d 643 (1st Dist. 1980) (referring to the commissioners' comments to the Uniform Act when finding that the apparent purpose of the 90-day-before-finding requirement was to allow a newly arrived litigant to obtain temporary relief before residing in Illinois for 90 days); In re Marriage of Goslin, 106 IllApp3d 87 (4th Dist 1982) (referring to the jurisdiction requirement of one of the parties being domiciled in Illinois for 90 days "prior to the court's final decision").

[16] In re Marriage of Goslin, 106 IllApp3d 87 (4th Dist 1982).

[17] Id at 88.

[18] Id (emphasis added).

[19] Id.

[20] Davis v Davis, 638 F Supp 862 (ND Ill 1986).

[21] Id at 863.

[22] Id at 865 (emphasis added).

[23] Hermann v Hermann, 219 IllApp3d 195 (3rd Dist 1991).

[24] Id at 196.

[25] Id at 197. (citing 9A Uniform Laws Annotated sec. 302, at 122 (1979)).

[26] People v Carpenter et al, 228 Ill2d 250 (2008) ("It is 'fundamental in Illinois that the decisions of an appellate court are binding precedent on all circuit courts regardless of locale.' Therefore, until this court says otherwise, an applicable appellate court decision must be followed by the circuit courts of this state."); People v Harris, 123 Ill2d 113 (1988) (Clarifying that a circuit court should follow its own district, as opposed to other districts, only "where two or more appellate districts are in conflict..."); Aleckson v The Village of Round Lake Park, 176 Ill2d 82 (1997) (Justice Harrison concurring) ("Illinois has but one appellate court.").

[27] See Hermann v. Hermann, IllApp3d 195 (3rd Dist 1991); In re Marriage of Silvestri-Gagliardoni, 186 IllApp3d 46 (1st Dist 1989) (Buckley dissenting).

[28]  Goslin, 106 IllApp3d 87.

Jon D. McLaughlin
(309) 319-6206

Sunday, January 23, 2011

Illinois Civil Unions (Bloomington Legal Newsletter)

I have received a number of questions regarding the civil union bill that was recently passed by the Illinois Senate and House, and which is expected to be signed into law by Governor Quin shortly. The following is meant to be a brief overview of the new law and some of its effects.


Governor Pat Quinn has already pledged to sign SB1716, the "Illinois Religious Freedom Protection and Civil Union Act," which passed in the Senate by a 32-24-1 vote, and passed the Illinois House by a 61-52 majority vote. Assuming the governor signs the bill as he has promised, civil unions can begin in June. The process for getting a civil union will be very similiar to obtaining a marriage license. It will not require applicants — straight or gay — to sign affidavits stating that they live together.

The new law will neither affect nor be affected by 750 ILCS 5/213.1, which provides that "[a] marriage between two individuals of the same sex is contrary to the public policy of this State." The new law ignores the prohibition against gay marriage, and simply incorporates all the rights of marriage without calling it marriage. At its essence, the bill says that two people who have entered into a civil union are entitled to the same legal treatment under Illinois law that is presently given to spouses. In this way, the new law grants all the rights of marriage except for the name.

While thought of as a historic step forward for gay rights in Illinois, the new civil union bill also extends opportunities to heterosexual couples who do not want to wed but seek many of the legal protections of marriage. Those who drafted the law felt it important to be inclusive, given the bill's intent of opening up rights that had long been denied to a demographic group.

Senior citizens is one group who lobbied for the bill. There are a good number of seniors who have formed new relationships after the deaths of their spouses but who have decided against marriage for financial reasons. Without the new law, seniors with survivor's benefits from Social Security or a pension could lose that income if they remarry. A civil union will allow them to keep that benefit while providing the same state-level rights as a marriage. Because federal law doesn't recognize civil unions as equivalent to marriage, those in that situation may find that entering into a civil union provides them with the best of both worlds, enabling them to protect their retirement income and other benefits and also be able to be with their new partners in the hospital and, if necessary, make health care decisions for them

The new law will provide couples of the same or opposite sexes with the option of entering into a civil union that will provide them with the same rights, responsibilities, protections, and benefits that marriage provides under state law, whether common law, statute, or administrative policy or regulation. The new law also mandates legal recognition of civil unions, marriages between persons of the same sex, or any other substantially similar legal relationship other than common law marriage that two persons enter into in any other jurisdiction. Couples will be able to dissolve their civil unions under the provisions of the Illinois Marriage and Dissolution of Marriage Act. The obligations for dissolving a civil union are exactly the same as in dissolving a marriage. You would see a potential for alimony, division of property, everything.

While no civil union provides a couple with federal rights — such as Social Security survivor's benefits or the ability to file joint tax returns — Illinois' civil union bill gives the couple access to all state-level marriage rights, including health care benefits from any company that offers a spousal plan.

Medical issues

Hospital visitation rights and the ability for partners in a civil union to make health care decisions for each other are key parts of the bill. Previously, a same-sex partner would be the last person allowed to make a medical decision for someone incapacitated, following all manner of blood relatives and falling under the classification of "close friend."

One of the most important results will be that couples who have done no estate planning but have entered into civil unions will immediately jump to the head of the line for purposes of decision making under the Health Care Surrogate Act (HCSA), 755 ILCS 40/1 et seq. That statute, which establishes a priority for patients and their surrogates to make decisions about medical treatment and end-of-life care, including decisions to continue or withhold life-sustaining measures, without court involvement, currently assigns the partner of an unmarried patient to the category of "close friend" (see 755 ILCS 40/10). Under the HCSA, that's the last level of decision-making priority. 755 ILCS 40/25. The patient's guardian of the person and spouse fall into the first and second priority, respectively. Once the new law takes effect, patients' civil union partners will stand in the same shoes as spouses. In the past, if you didn't have a power of attorney that spelled that out, you were out of luck.

Estate planning

The new law will benefit many couples who couldn't afford the costs of proper estate planning. Very often heterosexual couples go and put financial documents in place, but absent that, they have certain presumptions under the law if they haven't done that. But same-sex couples had no rights like that. It's an expensive process, and many can't afford it.

Now, a same-sex partner will have the same inheritance rights as a spouse in a heterosexual marriage. Benefits from a state pension will pass on when the worker dies. Pensions are huge. If an Illinois policeman or fireman is killed in the line of duty, the spouse gets a surviving pension benefit. That, prior to this law, was not available to same-sex couples.

The rights of partners in civil unions will extend to post-mortem proceedings. Just as widowed spouses may do, widowed civil union partners will now have the right to contest or renounce their partners' wills.

Though the guardianship statute does not direct any priority, courts generally prefer to appoint spouses as guardians, and it is anticipated that courts will follow the new law's explicit intent that partners in civil unions are to be treated as spouses. And, if anyone else, such as siblings or parents, begins guardianship proceedings against a person in a civil union, the person's partner will now have to be given notice.

No federal protection

Although the new law will give same-sex couples extensive protection on the state level, their relationships remain unrecognized by the federal government. The federal Defense of Marriage Act prevents gay and lesbian couples — even those in a civil union or married in a state that allows same-sex marriage — from receiving a Social Security survivor's benefit or filing joint federal tax returns. Also, the value of domestic partner benefits is treated as income and taxed by the federal government.

Economic impact to the State

The biggest savings for the state can come from the way civil unions affect social services. For example, if a person in a same-sex relationship applies for Medicaid, the partner's income isn't factored into the equation unless the couple are either married or in a civil union. If there's a civil union partner, that person gets considered, and the combined income might make the person ineligible. That effect can result in millions or even tens of millions in savings for state government. It's not going to solve any economic or budget crisis, but it should have a slight positive impact for the state.



This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be
sought in particular matters.

Jon D. McLaughlin, Esq.
Allison & Mosby-Scott
210 1/2 North Williamsburg Drive
, Illinois 61704
Phone: (309) 662-5084
Cell: (309) 319-6206