So, you just got served with Illinois divorce papers or a child custody action. Now what? Whether you suspected this legal action might happen, once you’ve been served there is no time to waste taking necessary steps to protect yourself.
First of all, do not ignore the fact that you have been served. Be forewarned! If you have been served with a Petition for Dissolution of Marriage or a Petition for Allocation of Parental Responsibilities you only have so much time to alert the court that you intend to be involved in the legal proceedings. The way you do this by filing your “appearance” in the matter which means filing and Answering the Petition for Dissolution (or Petition for Allocation of Parental Responsibilities
It’s important to understand that once you have notice of the legal action, the filing party can usually move forward without your involvement even if you fail to file your appearance in the matter.
How Do Family Law Court Proceedings Begin?
When family law cases are initially filed in Illinois, the filing party must provide the other party with notice. This is called the Service of Process. This is done by serving the other party with a Summons and a copy of the document that was filed. A Summons is an official notice that a legal proceeding was filed and that you are a named party.
Who Serves an Illinois Summons and Petition in a Family Law Case?
Under most circumstances, the appropriate Illinois County Sheriff’s Department or a private process server will serve the Summons, along with the document that was filed. When serving a family law or divorce papers it’s common for service attempts to be made at a party’s residence or at their place of employment.
What Information can be found in the Summons?
The Summons states what type of proceeding has been filed. The Summons explains that you must file a written Appearance and an Answer in the Circuit Clerk’s Office within a certain number of days, often within thirty (30) days.
What if I Do Not Want to Accept the Summons?
We’ve all seen it. On television shows and in movies, the drama unfolds with the person about to be served with a lawsuit Summons cleverly hiding (or attempting) to avoid the process server. While it is not unusual for someone to not want to accept the summons, it is important to understand it will not make the Petition go away.
In Illinois, “Service of Process” is considered completed when the process server hands the Summons and the filed legal document to the other party. As stated above, service is usually attempted at a party’s place of employment or last known address.
And if you’re not home, that may not be a problem for the process server. if someone you live with IS home. If you live with someone over the age of thirteen (13), you need to be aware that Service of Process can also be completed when the sheriff or process server hands the Summons and filed legal document to anyone who lives in your home as long as the recipient is over the age of 13.
Alternate Methods for Service of Process
In addition to personal service by the Sheriff or a private process server, the court is able to make it possible for litigants to serve the other party by granting permission to use alternative means for service. This typically happens when someone is attempting to avoid service. In those situations, there are occasions when service is completed by sending the Summons and filed documents through the mail and by publishing a notice in the newspaper.
What is a Default Order?
After you’ve been served, it’s crucial you respond by filing your written “Appearance and Answer” by the deadline. Filing your Answer lets the Court know you are participating in the legal proceedings.
Do not ignore the fact that you have been served. The clock is now ticking.
If you do not file your Appearance and Answer by the established deadline, the filing party can seek relief by from the Court by making a motion requesting that the Court enter a Default Judgment. This means that the filing party could be granted the relief requested in the Petition without you even participating in the case. Unless you have no opinion about the relief requested, it is not a good idea to ignore the case as the Court will enter orders whether you agree or not.
Can a Default Order be Vacated in Illinois Divorce or Family Law Case?
Yes. In Illinois, Section 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2) provides a possible way to vacate a default order in a Chicago divorce or family law case. However, before the Court enters a default order, one must show that they have a meritorious reason for not participating in the litigation.
In the end, the decision to vacate a default order is really up to the Judge. And understand, they are rarely impressed when they hear that a court proceeding was ignored.
Be Proactive and Participate in Your Case
If you have the opportunity to be involved in a case and that case has the potential to impact your present life and future, then be proactive. Protect yourself, and be involved in your case. Getting the court to “throw out” or vacating default orders can sometimes be an uphill battle depending on the circumstances. The best way to avoid this all is to simply respond to the lawsuit by filing your written Appearance and Answer in a timely manner.
If you’ve been served with divorce papers or any other type of family law-related documents, do not hesitate to get trusted input from an experienced divorce and family law attorney. The clock is ticking and your future could be negatively impacted if you wait too long to respond appropriately. Contact Anderson & Boback when you’re facing a family law-related matter or have questions or concerns about being served with divorce papers.