Is Illinois the proper State for your divorce case? If so, how do you determine what County to file a divorce case? These are issues of jurisdiction and venue, both of which impact where a divorce case filing should and could take place.
In regards to jurisdiction, the Illinois Marriage and Dissolution of Marriage Act discusses residence and permanent abode, as it is determined to be the place one considers their home. Of paramount importance in determining whether a given place is or is not one’s residence is the intent of that person to live there as his permanent home. This residency issue is directly linked to the question of what State should handle your divorce case. The jurisdictional issue has been presented to the Supreme Court, particularly addressing a temporary relocation amounting to an abandonment of one’s residence, which are outlined from the “Smith Principles” of 1867:
1. residency is established by physical presence and an intent to remain in that place,
2. once established, residency continues until abandoned,
3. establishment and abandonment are principally a question of intent, and
4. the burden is on the challenger to prove that a residency, once established, has been abandoned.
Some useful things to consider in determining residency are as follows: property taxes, location of personal property, Driver’s license, car registration, banking address, registered voting address and the like.
In regards to venue, the proceedings shall be had in the county where the plaintiff or defendant resides. Objection to venue is barred if not made within such time as the defendant’s response is due. In no event shall venue be deemed jurisdictional. In any case brought pursuant to this Act where neither the petitioner nor respondent resides in the county in which the initial pleading is filed, the petitioner shall file with the initial pleading a written motion, which shall be set for hearing and ruled upon before any other issue is taken up, advising that the forum selected is not one of proper venue and seeking an appropriate order from the court allowing a waiver of the venue requirements.
In layman’s terms,”venue” refers to the county in which you file your case and it does not affect jurisdiction. Venue can be waived; jurisdiction cannot.
If you file in the wrong county, but you and your spouse are both Illinois residents, that court still has jurisdiction, despite the improper venue. However, appellate courts have addressed the venue provisions stating in one case, “…the parties should have advised the court that venue was not proper and obtained an appropriate order waiving the venue requirement and granting leave to file the petition…”
This is why a key component in any divorce case is to retain appropriate counsel to advise and file in the appropriate jurisdiction and venue. Reach out to us at www.wardfamilylawchicago.com/contact-us/ to talk to us about your options for divorce filing.