Forum Non Conveniens In An Illinois Divorce

When a divorce is filed in Illinois…that divorce is filed somewhere.

The legal location of a divorce is called the venue.

Venue is “the county or district in which a case is to be tried.” Black’s Law Dictionary (11th ed. 2019)

The final decisions regarding a divorce will be made in a specific venue.

“Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)(note: this is the only time the Illinois Marriage and Dissolution of Marriage Act refers to the parties by the antiquated and adversarial terms “plaintiff or defendant. In the rest of the Act the parties are “Petitioners or Respondents”)

An Illinois divorce must be filed with the circuit clerk of the county where either the Petitioner (the person who files the divorce first) lives or where the Respondent (the other party to the marriage and future divorce) lives.

Forum Non Conveniens Between Different Illinois Counties

There can be a great deal of gamesmanship when the two parties do not live in the same Illinois county.

The practice of family law varies greatly county to county in Illinois. Some counties lean strongly into the rules (I, obviously, love those counties) while other counties become more personality based (thankfully, my personality is that of a 17 year veteran in the Cook County Domestic Relations division).

The experienced Illinois divorce attorney will file a divorce in the county which is likely to benefit his or her client.

When the respondent discovers that the divorce is filed in a county they do not live in whose procedure could provoke an adverse outcome, the respondent may object to the venue by citing the doctrine of forum non conveniens.

Forum non conveniens is “a doctrine allowing a court with jurisdiction over a case to dismiss it because the convenience of the parties and the interest of justice would be better served if the case were brought in a court having proper jurisdiction in another venue.” Black’s Law Dictionary (11th ed. 2019)

In Illinois, “forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice…This doctrine allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)(quotations omitted)

The burden of proving that the forum is inconvenient rests on the party trying to change the venue.

“The burden is on the party asking for the dismissal to show that the relevant factors strongly favor transfer.” Koss Corp. v. Sachdeva, 975 NE 2d 236 – Ill: Appellate Court, 1st Dist., 6th Div. 2012

There are “private and public interest factors to be considered in applying the doctrine of forum non conveniens.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)(quotations omitted)

The private interest test as to whether a court should dismiss the current county’s jurisdiction over an Illinois divorce case is as follows: The current court should consider “(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)

When considering a forum non conveniens claim “no single factor is controlling.” Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 274 (2011)

Let us work through each of the private interest factors.

1. The convenience of the parties.

“[T]he [respondent] must show that the plaintiff’s chosen forum is inconvenient to the defendant.” (Emphasis added.) Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006); Vivas v. Boeing Co., 392 Ill. App. 3d 644, 657 (2009)

You cannot argue that the venue is inconvenient to the petitioner…they chose to file it in that county. The Petitioner has to live with that choice.

“[O]ne party cannot argue the other party’s convenience.” Ruch v. Padgett, 2015 IL App (1st) 142972, ¶ 40.

2. The relative ease of access to sources of testimonial, documentary, and real evidence

In a divorce case, testimonial evidence of potential witnsesses and where those witnesses live weigh heavily. The is especially relevant when there are children whose custody is subject to the divorce. In fact, a divorce with children must proceed where the children live.

“A proceeding for the allocation of parental responsibilities is    commenced in the county where the child resides.” 750 ILCS 46/604(b)

In the year 2023, all documentary evidence conceivably relevant in a divorce would be electronic rendering no inconvenience to any location.

Likewise, real evidence (bringing an object into the court room for inspection) is likewise unlikely and, therefore, not a strong factor. The possible exception may be the valuation of immovable items, like real estate, causing the valuator to travel unnecessarily.

3. All other practical problems that make trial of a case easy, expeditious, and inexpensive

Do not get too creative while coming up with “other practical problems” which necessitate a transfer.

Most venues are not too far from each other. “Cook County and Du Page County are adjacent: the proximity, and the many roads and trains between, reduce any practical problems.” Meier v. Ryan 2023 IL App (1st) 211674

Likewise, do not claim that a local divorce case needs local attorneys.

“[T]he location of the parties’ attorneys is accorded little weight in determining a forum non conveniens motion.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 450 (2006)

These private tests to determine the validity of a forum non conveniens claim are a really a common sense “totality of the circumstances” test.

 “A defendant seeking transfer is not required to show that the plaintiff’s choice of forum is inconvenient; rather, transfer is allowed where defendant’s choice is the substantially more appropriate forum.” Czarnecki v. Uno-Ven Co., 339 Ill.App.3d 504, 508, 274 Ill.Dec. 368, 791 N.E.2d 164 (2003)

“If, after considering the totality of the circumstances, defendant proves that the balance of circumstances strongly favors transfer, its motion should be granted.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011

In addition to the private 3-prong test is a public interests test with the following factors

“(1) the interest in deciding controversies locally; (2) the unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation; and (3) the administrative difficulties presented by adding litigation to already congested court dockets.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443-444 (2006)

Let us work through each of the public factors

1. The interest in deciding controversies locally

Divorces should occur in the county that the marriage largely passed its time in.  

“In domestic relations cases where the marriage occurred in the same county that the marital home was located and the children resided, there is a strong tie to that county.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011

2. The unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation

Illinois divorces do not have juries. “There shall be no trial by jury under th[e Illinois Marriage And Dissolution of Marriage Act].” 750 ILCS 5/103.

Furthermore, 80% of Illinois residents live in the Chicagoland area. A drive is not an unfair trial expense. “[T]he unfairness of imposing trial expense is really not a consideration when the two county court locations are only 32 miles apart.” Shirley v. Kumar, 404 Ill.App.3d 106, 112, 343 Ill.Dec. 630, 935 N.E.2d 638 (2010). 

3. The administrative difficulties presented by adding litigation to already congested court dockets

Usually, “court congestion is a relatively insignificant factor, especially where the record does not show the other forum would resolve the case more quickly”  Berbig v. Sears Roebuck & Co., 378 Ill. App.3d 185, 189, 317 Ill.Dec. 721, 882 N.E.2d 601 (2007)

As of March, 2023, the publication of this article, Cook County’s domestic relations court system is extremely overburdened. Judges often give trial dates in 2024. A Cook County judge may find this factor extremely compelling. “When deciding forum non conveniens issues, the trial court is in the better position to assess the burdens on its own docket.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 302 (2006)

At the end of the day, courts are about power. People with power, judges, can be loath to give up that power. Once a case is in a judge’s jurisdiction, that judge will be inclined to keep that case…and they have plenty of case law to allow them to do so.

“Before weighing the relevant factors, a court must first decide how much deference to give to a plaintiff’s choice of forum.” Vivas v. Boeing Co., 392 Ill. App. 3d 644, 657 (2009)

“[T]he battle over forum begins with the plaintiff’s choice already in the lead.” First American Bank v. Guerine, 198 Ill. 2d 511, 521 (2002)

It is “assumed on a forum non conveniens motion that the plaintiff’s chosen forum is a proper venue for the action…Plaintiff’s choice of forum is entitled to substantial deference.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)

Only when the petitioner has chosen a venue different from his home does a court seriously weigh the appropriateness of the forum.

When neither the petitioner’s residence is not in the chosen forum, the petitioner’s choice is “entitled to somewhat less deference…the deference to be accorded to a plaintiff regarding his choice of forum is less when the plaintiff chooses a forum other than where he resides…nonetheless the deference to be accorded is only less, as opposed to none.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006) (quotations omitted)

In a divorce, the only other option for venue is the Respondent’s home…and how can the respondent argue with that venue?

Forum Non Conveniens Claims When You Live Outside Of Illinois

“Forum non conveniens is applicable when the choice is between interstate forums as well as when the choice is between intrastate forums.” Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 832 (2009).

Usually, a divorce occurring in Illinois that should occur in another state has a bunch of better jurisdictional arguments than forum non conveniens.

The Illinois “Code Of Civil Procedure” has much better arguments to move your divorce case out of Illinois than the forum non conveniens claim outlined above in this article.

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

(5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;

(6) With respect to actions brought under the Illinois Parentage Act of 1984,  1 as now or hereafter amended, or under the Illinois Parentage Act of 2015   2 on and after the effective date of that Act, the performance of an act of sexual intercourse within this State during the possible period of conception;

(7) The making or performance of any contract or promise substantially connected with this State;

(8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;

(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State;

(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;

(11) The breach of any fiduciary duty within this State;

(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;

(13) The ownership of an interest in any trust administered within this State;  or

(14) The exercise of powers granted under the authority of this State as a fiduciary.” 735 ILCS 5/2-209(a)

If you don’t like where your Illinois divorce is, you’d better file a motion for dismissal. If you live in another Illinois county use the doctrine of forum non conveniens. If you live in another state, dismiss the case under the Code of Civil Procedure. Either way, contact an experienced Illinois divorce attorney to make sure you best argue your case.

source https://rdklegal.com/forum-non-conveniens-in-an-illinois-divorce/