Illinois Matrimonial & Family Law

Venue and Jurisdiction:  "Venue" refers to the county in which you file your case.  Venue does not affect jurisdiction.  Venue can be waived; jurisdiction cannot.  If you file in the wrong county, but you and your spouse are both Illinois residents, that court still has jurisdiction, despite the improper venue.  A divorce judgment cannot be invalidated just because the parties went to the wrong county.  In re:  Marriage of Heady, 115 Ill.App.3d 126, 450 N.E.2d 462, 71 Ill.Dec. 27 (5th Dist., 1983).

 

 

Which County?

"Residency" Defined

The Smith Principles, Park, and Rahm Emanuel

Waiving Venue

Filing in Improper Venue

Objecting to Venue

Post-Judgment Venue

Other Venue

 

 

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Which County?:  You file in the county where you or your spouse live . . . because that's where you pay taxes and those taxes are what pays for the court system.  Why should the taxpayers of County B subsidize a legal system for residents of County A?  Residents of County A should go file in County A and deplete County A's treasury.  Where spouses live in different counties, a divorce case may be filed in either countyIllinois law (750 ILCS 5/ 104) says:

 

104.  Venue:  The proceedings shall be had in the county where the plaintiff or defendant resides . . . .  Objection to venue is barred if not made within such time as the defendant's response is due.  In no event shall venue be deemed jurisdictional.

750 ILCS 5/ 104  (emphasis added)

 

"Residency" Defined:  "Residency" is most often dealt with in "which-state-do-you-file-in" (jurisdiction) cases.   Those cases all resolve on the issue of "residency" and, therefore, hold the definitions and hands-on applications that we must look to in resolving "which-county-do-I-file-in" cases.  In Garrison v. Garrison, the Second District appellate court said: 

 

The word 'residence' may have a variety of meanings depending upon the context in which it is used.  As used in the Divorce Act (now, the Illinois Marriage and Dissoultion of Marriage Act, but Section 104's language about "residence" hasn't changed) it does not mean the same as 'domicile.'

 

As used in the Divorce Act, 'residence' this denotes 'permanent abode.'  It is the place one considers as 'home.'  Of paramount importance in determining whether a given place is or is not one's residence is the intent of that person to live there as his permanent home.

Garrison v. Garrison, 107 Ill.App.2d 311, 246 N.E.2d 9(2d Dist., 1969)

 

The Smith Principles, Park, and Rahm Emanuel:  In 2009 Rahm Emanuel wanted to run for mayor of Chicago.  He previously served as Barack Obama's Chief of staff and, during that time, moved his family to a home he rented in DC and rented out the Chicago home he had owned for more than a decade.  His mayoral candidacy was challenged on the objection that he did not satisfy the one-year residency requirements for the election.

 

The Emanuel case (Maksym v. Board of Election Commissioners of the CIty of Chicago,) is all about "candidate qualifications" -- not divorce -- but the language and concepts apply well in the context of domestic relations.  Indeed, the Supremes noted in Emanuel that "this court has applied similar principles in virtually every setting in which it has construed a legal residency requirement."

 

In Emanuel, a majority of the Supremes relied on the 1867 "Smith Principles" to say a temporary relocation does not amount to an abandonment of one's residency . . . "plain and simple." Smith, a longtime Illinois resident, was appointed to a circuit judgeship by the Governor in 1867.  A lawsuit was filed to remove Smith on the ground that he had not been an Illinois resident for five years preceding the appointment as was required at the time.  Smith had, in fact, moved with his family to Tennessee for eight months during the five-year period.   The matter was presented to the Illinois Supreme Court which considered the "surrounding circumstances" and pronounced the "Smith Principles":

 

1. residency is established by physical presence and an intent to remain in that place,

2. once established, residency continues until abandoned,

3. establishment and abandonment are principally a question of intent, and

4. the burden is on the challenger to prove that a residency, once established, has been abandoned.

 

A specially concurring opinion in Emanuel said "residency" is not nearly so "plain and simple" and pointed to "[l]ater decisions, namely Pope v. Board of Election Commissioners, 370 Ill. 196 (1938), Park v. Hood, 374 Ill. 36 (1940), and Clark v. Quick, 377 Ill. 424 (1941), each define residence in terms of domicile plus a permanent abode. In other words, under these cases, intent alone is not enough to establish residency."

Maksym v. Board of Election Commissioners of the CIty of Chicago,

 

The Emanuel case is chock-full of useful quotes and ists of items to include in a residency contest.  Here's a sampling of facts the court considered:

 

At all relevant times, including the time he was in Washington, Emanuel:

• paid property taxes on his Chicago house,

• stored valuable personal property (a piano and some furniture too big to move and over 100 boxes of personal items) at the Chicago house,

• held an Illinois Driver's license with the Chicago address,

• registered his car at the Chicago house address,

• listed the Chicago address on his personal checks,

• voted in Chicago using the Chicago address as his registered voting address,

• arranged the leases of the Washington house and the Chicago house to coincide with the end of the children's school year.

 

Waiving Venue:  That "objection-to-venue-is-barred . . . " language in 750 ILCS 5/104 means that a couple living in County A may file for divorce in County B so as to keep prying eyes of nosey neighbors and associates from reading a legal notice in the local paper and making it a little more difficult for them to look into the divorce file.

 

The law, however, also says:

 

In any case brought pursuant to this Act (the divorce law) where neither the petitioner nor the respondent resides in the county in which the initial pleading is filed, the petitioner shall file with the initial plealding a written motion, which shall be set for hearing and ruled upon before any other issue is taken up, advising that the forum selected is not one of proper venue and seeking an appropriate order from the court allowing a waiver of the venue requirement of this Section.

750 ILCS 5/104

 

The law doesn't say what happens if the parties file in an improper venue and fail to notify the court.  The statute says "in no event shall venue be deemed jurisdictional." That means the final divorce jugment cannot be vacated.  The parties and lawyers, however, may be looking at sanctions.

 

The Civil Practice law also says that objecitons to venue  are waived if not raised within the time to file the Answer.  735 ILCS 5/2-104(b).

 

Filing in Improper Venue:  In In re:  Marriage of Jones, 104 Ill. App. 3d 490, 60 Ill.Dec. 214 (1st Dist., 1982), Bill and Corinne Jones lived in DuPage County, but Bill filed in Cook County and Corinne didn't object.  Bill's business was in Chicago and the lawyers representing the parties had their offices a block away from the Cook County Courthouse -- so it was easy for everyone.  After the trial, Corinne appealed several issues . . . but "improper venue" wasn't one.  When it learned that this couple lived and paid taxes in DuPage County, but had used the time and resources of the Cook County courts, the appellate court took it upon itself to slam the lawyers and the parties:

 

This court raises sua sponte the failure of the parties hereto to comply with the venue provisions of section 104 . . . .

 

We find misplaced the parties reliance on their failure to object to improper venue as authority for this action to be brought in the circuit court of Cook County, rather than in the circuit court of DuPage County, which county is where both parties presently reside.  We are not aware of any experience in the family law area or authority that demonstrates that the legislature intended the unlimited filing of such actions in any court in the State without any nexus whatsoever and without the necessity of any application to fix a substitute venue.  We are not convinced that the statute mandates such a narrow construction or restricted view allowing the parties to disregard the clear direction of the statue.  This posture permits the parties to forum shop . . . .

 

We reject the contention that section 104 is meaningless and that the legislative direction as to venue may be ignored upon the parties' election or that the trial court is without authority to transfer an action to an appropriate county. . . . By its terms, section 104 governs venue and it is reasonable to assume that the legislature did not intend to confer upon the parties to a dissolution proceeding the unfettered right to select any forum, and possibly an appellate district, except as provided in that section. . . . Under circumstances such as those which exist in this cause, it is incumbent upon the parties to timely advise the court that the forum selected is not one of proper venue and, having apprised the court of this, to attempt to secure an appropriate order from the court allowing a waiver of improper venue."

 

In re:  Marriage of Jones, 104 Ill. App. 3d 490, 60 Ill.Dec. 214, 432 N.E.2d 1113 (1st Dist., 1982).

 

The same thing happened at the same time before the same court in In re:  Marriage of Sales, 106 Ill.App.3d 378, 436 N.E.2d 23,  62 Ill.Dec. 441 (1st Dist., 1982).  Bill and Barbara Sales lived in Lake County but filed in Cook County.  The appellate court said:  

 

As noted in In re Marriage of Jones (1982), 104 Ill.App.3d 490, 60 Ill.Dec. 214, 432 N.E.2d 1113, wherein a similar venue problem existed, the parties should have advised the court that venue was not proper and obtained an appropriate order waiving the venue requirement and granting leave to file the petition. Nonetheless, despite the parties' failure to comply with section 104, we elect to consider this appeal. 

 

In re:  Marriage of Sales, 106 Ill.App.3d 378, 436 N.E.2d 23,  62 Ill.Dec. 441 (1 Dist., 1982).

 

The Jones and Sales courts let the appeals go forward, but their admonishments were strong enough that one should expect some kind of a sanction the next time this happens.

 

Objecting to Venue:   750 ILCS 5/104 says that you may object to the filing of a case in an improper venue but, if you want to object, you have to do it as the first thing out-of-the-starting-gate.  If you file an answer, instead, you blow the deadline by which to object, you waive your right to object, and you're probably stuck in that venue whether you like it or not.  The defense of "wrong venue" may be raised by an Answer.  Dever v. Bowers, 341, Ill.App. 444, 94 N.E.2d 518 (1950).  Illinois law, however, provides a better option:  a motion to change venue to be filed within the time of filing the Answer.  735 ILCS 5/2-104.  

 

Post Judgment Venue:   If any court proceedings must be had after the judgment is entered, Illinois law (750 ILCS 5/512) says that the post-judgment issues should be brought before the same circuit that entered the judgment if either (or both) party(ies) live in that circuit.  If neither party lives in the circuit where the judgment was entered, then the movant should file papers in the circuit that entered judgment and seek to transfer the matter to the new, post-judgment venue where either party lives.   

 

Objection to post-judgment venue is waived if mot raised by the time respondent's answer is due.  "It is the respondent's burden to prove the petitioner's venue selection was improper.  To prove petitioner's venue selection was improper, the respondent must set out specific facts and show a clear right to the relief asked for.

 

Other Venue:  In larger counties (like Cook and its collar counties) the court system has many "branches" with each branch handling a specific type of case.  Each branch is considered it's own venue.  In Cook County, for example, the "County Department" has a "Family Law Division."  The Family Law Division has divorce courts, and parentage courts.  There are also specialized courts set up for domestic violence and expedited child support.  Sometimes cases get filed in the wrong court and must be transferred to the right branch.  Lawyers use a Motion to Transfer Venue" to get that done.

 

Venue can also refer to the specific courtroom in which a case is being heard.  For various reasons a party may have to change the venue of a case, but the case will never leave the county nor even the courthouse . . . it will just make a trip down the hall to a different courtroom with a different judge.