Typically, you’d want to avoid a default when you are going through a divorce in Chicago because if not, then the way your marital estate is divided is out of your hands. Recently a client hired us to help her in avoiding a default in a divorce action.
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Case Background
Our client’s spouse filed for divorce at the end of 2020. She was personally served with divorce papers a month later but did not see any court date listed on the documents she received. As a result, she didn’t take any action. She was also dealing with a lot of health concerns and thought that she could put everything on the backburner, like everything else, because of COVID-19. Throughout the COVID-19 pandemic, there was a lot of confusion about how certain entities were adapting to our new norm. Our client just assumed that the courts were put on hold, just like everything else around her. Unfortunately, since she didn’t hire an attorney right away, no one was there to tell her otherwise.
It wasn’t until she was served with the default paperwork that she realized something was wrong. She immediately hired Anderson Boback & Marshall and we explained her situation to her. We went before the Judge and explained that our client has always been ready to participate in her divorce, but now has a better understanding of how to do that and wants a second chance. We explained that the second she realized the Courts were open, she hired an attorney, and we immediately took action. Showing her eagerness, and immediate hiring of counsel, assisted the Judge with determining that her excuses were legitimate and he vacated (terminated) the default against her. Now she can continue with the divorce process and play an active role in the way the marital estate is divided and how that will affect her life moving forward.
Extraordinary Circumstances Required to Vacate a Default Judgment
Our client was lucky- under Illinois civil procedure rules, a court is able to consider motions to vacate default judgments for up to 30 days after the original judgment is finalized. If it is longer than 30 days, a court may still accept a motion to vacate the judgment. However, you must be able to demonstrate that there were extraordinary circumstances that prevented you from responding to the petition for dissolution in the first place. Those extraordinary circumstances are assessed based on factors established in Smith v. Airoom, Inc. 499 NM.E 2d 1381. In Smith v. Airoom, Inc. the Court determined that the motion to vacate the judgment must show, based on a preponderance of the evidence:
- the existence of a meritorious defense or claim;
- due diligence in presenting the defense or claim in the original action; and
- due diligence in filing the petition.
Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently when he failed to initially resist the judgment.
It is a tough burden to meet but typically Judges air on the side of caution to allow complete participation of both parties in their divorce. But as with all things in the law, it is not a guarantee and is very risky.
Tips for Avoiding a Default in a Chicago Divorce
Some tips to keep in mind to avoid a default in a Chicago divorce would be to first, avoid getting a default entered against you in general. There are specific time constraints, like having 30 days to file your appearance and respond to the petition for dissolution, that are essential in keeping you on track with your divorce. By just meeting these basic deadlines, you can avoid the whole process of trying to vacate the default against you. On that note, be sure to also immediately consult with an experienced attorney. Even if you do not wish to hire an attorney to assist you with your divorce, at least having an initial consultation with an experienced attorney will put you on the right track and make you aware of basic due dates that need to be met. We would also suggest that you do your research. Any document that you receive from a government official, like a sheriff, or even a special process server, has meaning and typically requires action. Read the document you received and do everything in your power to understand it and take those next steps.
Although our client was one of the lucky ones and had a strong team of experienced divorce attorneys on her side, there are plenty of occasions where individuals can not vacate the defaults against them, and they have to deal with those repercussions. Don’t put yourself in that risky situation, give our office a call today and schedule a free consultation.
