Protecting a Case From Dismissal

Protecting your Case as a Respondent Domestic relations cases are civil in nature.   In Illinois, divorce cases are civil matters that involve at least two parties: the Petitioner and the Respondent. The Petitioner is the spouse who initiates the divorce by filing a legal document called a Petition for Dissolution of Marriage. This petition outlines the grounds for divorce and requests that the court officially dissolve the marriage.  Let’s explore tips and strategies for protecting a divorce case from dismissal.

Understanding Your Role as a Respondent in Divorce

According to Section 2-1009 of the Illinois Code of Civil Procedure, the Petitioner has the right to voluntarily dismiss their Petition for Dissolution of Marriage at any time before the trial or hearing begins, without prejudice. This means that the Petitioner can withdraw their divorce request without losing the right to refile later, as long as the case has not yet reached the trial stage.

Why this Matters to You as the Respondent

If you are the Respondent in a divorce case in Illinois, this provision can pose a significant challenge. If your spouse decides to dismiss the case, you could be left in a difficult position, especially if you wish to proceed with the divorce. So, how can you protect your interests and ensure that the divorce process continues, even if the Petitioner tries to back out?

The Solution: Filing a Counter-Petition for Dissolution of Marriage

The key to protecting your divorce case is to file a Counter-Petition for Dissolution of Marriage. This legal document is similar to the original Petition for Dissolution of Marriage, but it is filed by you, the Respondent. By filing a counter-petition, you effectively take control of the case, allowing it to continue even if the Petitioner voluntarily dismisses their original petition.

Reasons to File a Counter-Petition

There are several important reasons to consider filing a counter-petition:

1. Different Grounds for Divorce: If you wish to pursue a divorce on grounds that differ from those cited by the Petitioner, a counter-petition allows you to present your case and request the court to consider your perspective.
2. Preserving the Case: Filing a counter-petition ensures that the divorce proceedings can continue, even if the Petitioner dismisses their own petition. Under Illinois law, dismissing the original petition does not automatically dismiss any pending counterclaims. This means your counter-petition can keep the case alive.

Legal Safeguards for Your Divorce Case

It’s crucial to understand that while Section 2-1009 of the Illinois Code of Civil Procedure allows a Petitioner to dismiss their case, it also provides that any dismissal under this section does not dismiss a pending counterclaim. This legal safeguard means that if you have filed a counter-petition, the divorce case can proceed based on your filing, even if the original petition is withdrawn.

Practical Steps to Take

• Consult Your Attorney: Discuss your situation with your divorce attorney to determine if filing a counter-petition is the right strategy for you.
• File Promptly: If you believe your spouse may dismiss the case, it’s important to file your counter-petition as soon as possible.
• Monitor Developments: Keep track of any actions your spouse takes in the case, and stay in close communication with your attorney to ensure your interests are protected.

Take Charge of When You  Protect Your Divorce from Dismissal

If you’re concerned that your spouse may dismiss the divorce case, filing a counter-petition is a proactive step you can take to protect your rights. This strategy allows you to maintain control over the proceedings and ensures that your voice is heard in court. For personalized advice and assistance with your divorce case, contact Anderson Boback & Marshall today.