Keeping The Judge Informed

Imagine this, you and your spouse have been having problems and your spouse informs you that she has taken a job in another state. She further informs you that she will be taking your child with her. While no divorce proceedings have begun, you feel it is inevitable. What do you do? Wait and see if she files in this other state or take action and commence proceedings yourself? Let’s say you wait and see what happens.

Of course, once she is settled, she commences divorce proceedings.  Your spouse has only lived in the state for a month and everything you have read states she must be a resident for 90 days to obtain a divorce.  Surely, you reason, the case will be dismissed at some point since she didn’t live in that state 90 days before starting the divorce case.  Four months later you find yourself divorced and receiving minimal visitation with your child.  How could something like this possibly happen?

According to the Illinois Marriage and Dissolution of Marriage Act, the court will grant a divorce if “at the time the action was commenced one of the spouses was a resident of this state…, and the residence…had been maintained for 90 days preceding the commencement of the action or the making of the finding.” 750 ILCS 5/401(a). In layman’s terms, the 90 days can be satisfied either at the time of commencement of the action or when the final Judgment of Dissolution is entered by the court. Thus, a spouse may file for divorce in the State of Illinois if they can establish residency at the time the Judgment. The State of Illinois wanted to afford a new resident the ability to obtain temporary relief, hence the clause in the statute that allows the 90 days to be calculated from the date of Judgment, not just from the time of commencement.

As a residency requirement for jurisdiction is not as black and white as it may appear, if faced with a domestic litigation matter filed in another state you must immediately consider challenging the residency for jurisdiction by formal objection or the issue may be waived.  Generally, filing an objection as to jurisdiction will not prejudice your position nor give the other state’s court jurisdiction over you. However, the facts of each case and applicable laws will control how you go about contesting jurisdiction of another state. You also should consider filing a Petition for Dissolution in your home state where you and your spouse had previously resided to allow the case to be transferred to your state or to preclude a re-filing in the other state when the appropriate residency period is met.

Often times, you may lose your right to object to court proceedings if you wait too long.  The burden is on you to be constantly vigilant as to what is going on in your case. Do not assume the court is going to recognize when your rights are possibly being violated, you must be proactive. As the legal technicalities can be key to whether your rights are protected or lost, consult with a qualified domestic litigation attorney immediately when your spouse or ex-spouse moves out of state to determine how best to protect your position in the litigation to come.

One of the keys to successfully make your case is to be proactive when you think some important element isn’t receiving the attention of the judge. Of course, in pointing out these important points that may come up you should begin by bringing them to the attention of your attorney.
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