A divorce involves a number of technical legal issues. One of the first questions you may have is: "Where should I actually file for divorce?" In some cases, the answer may seem obvious, but if you and your spouse are already living apart–and in different states–then the matter is a bit more complicated.
The Importance of Jurisdiction
Not all courts are the same. The law determines what types of cases a particular court may decide. This is known as jurisdiction. If a court lacks jurisdiction, it cannot hear the case.
There are two types of jurisdiction: subject-matter and personal. Subject matter jurisdiction refers to broad categories of lawsuits. For example, patent law is under the exclusive jurisdiction of the federal courts. This means you cannot file a patent infringement lawsuit in Illinois state court. Conversely, family law matters like divorce fall within the subject-matter jurisdiction of state courts.
Personal jurisdiction means the state's courts may exercise legal authority over the parties to the case. Under Illinois law, a court may exercise personal jurisdiction in a divorce case where one spouse has been a “resident” of the state for at least 90 days. (Residency includes service in the armed forces.) In other words, if you and your spouse separate, and you move to Illinois, then 90 days later you can petition an Illinois court for a divorce.
What if your spouse is not also living in Illinois when you file for divorce? Like most states, Illinois has what is known as a “long-arm statute” authorizing its courts to exercise personal jurisdiction over non-residents under certain conditions. In divorce cases, Illinois' long-arm statute applies if the parties maintained their marital home in the state prior to separating or “any act giving rise” to the divorce occurred within Illinois.
A related issue to jurisdiction is venue. This refers to where the divorce case is actually filed. Each Illinois county maintains its own family court. Under Illinois law, a county court where either spouse resides is presumed to be the appropriate venue.
Venue, however, is not jurisdictional. If you live in DuPage County, and your estranged spouse lives in Cook County, you might want to file in DuPage simply out of convenience for yourself (and your attorney). Legally, however, it does not matter which county you choose. All Illinois courts enforce the same laws.
Establishing jurisdiction and venue is one of the first steps towards obtaining a divorce. An experienced DuPage County family law attorney can assist you at all stages of the process. Call 630-871-1002 for a free consultation at any one of our three convenient office locations today.