John Roska: How divorce case proceeds in court

John Roska: How divorce case proceeds in court

Q: A recent column dealt with ignoring a summons in a small claims case. Is it any different in a divorce case? If I get served with divorce papers, and want to get divorced, too, do I have to do anything? If I don't, will I get notices about any court dates, and be able to participate in the case?

A: Ignoring any Summons can lead to a "default," and losing your right to participate in the court case. You might still get notice of court dates, but may not be allowed to do anything if you show up. It's up to the judge—some may give you a break; lots won't.

A divorce starts with a petition for dissolution of marriage. That's served along with a summons. Tagging you with the summons, and the petition, gives the Illinois court system authority — "jurisdiction" — over you and the case.

As the previous column said, a summons invites you to participate in the court case. It's not an order. If you decline the invitation, and do nothing, you can be defaulted. In a divorce case, that means your spouse will probably get whatever he or she asked for.

"Losing" the case is the only risk of ignoring a summons. You won't go to jail, or otherwise incur official wrath.

A divorce summons gives you 30 days to respond. If you do, it's got to be in writing, filed in the case, at the circuit clerk's office. In Champaign County, that costs $115. That fee can be waived if you can't afford it.

The usual response to a divorce petition is an answer, admitting or denying each of the paragraphs in the petition. Sometimes, that may involve admitting parts of a paragraph, and denying others. For example, you admit the names and dates of birth for your kids, but deny your spouse should get custody.

Sometimes, the reply may be that you don't know, and can't admit or deny.

Filing an answer within 30 days of getting served avoids a default. That deadline is often flexible — if you're close, you probably won't be defaulted. But don't push your luck.

Avoiding a default assures you'll get notice of future court dates. You can participate in the case, but won't necessarily get you what you want.

For that, file your own counter-petition. The judge can then grant your requests, rather than just deny your spouse's.

You might still get notices of court dates if you ignore the summons. Sending notice is a safe practice, even if you're technically in default and not entitled to it.

If you show up — because you got notice, or because just happened to know about the court date — the judge could still default you, and not let you participate. Or, you might be allowed to participate, or to file a late answer. It depends on the judge.

That uncertainty makes it risky to ignore a summons. If you really want to come to court and be heard, file an answer, and a counter-petition.

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