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]
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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 Jon@AllisonMosby-Scott.com 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 A-Preller@hotmail.com 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).
[7] Id; See also In re Marriage of Mates, 156 Ill.App.3d 26 (2nd Dist 1987).
[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).
[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).
[18] Id (emphasis added).
[20] Davis v Davis, 638 F Supp 862 (ND Ill 1986).
[22] Id at 865 (emphasis added).
[23] Hermann v Hermann, 219 IllApp3d 195 (3rd Dist 1991).
[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.
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Jon D. McLaughlin
(309) 319-6206
