You cannot make an omelet without breaking an egg and you can’t get a final judgment for dissolution of marriage without proving to the court that the Respondent was personally served.
“After the filing of the petition, the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411
To serve is “to present (a person) with a notice or process as required by law” Black’s Law Dictionary (11th ed. 2019).
The point of service is to bring a person under the personal jurisdiction of the court.
Personal jurisdiction is “A court’s power to bring a person int its adjudicative process; jurisdiction over a defendant’s personal rights, rather than merely over property interests.” Black’s Law Dictionary (11th ed. 2019).
“To enter a valid judgment, a court must have both jurisdiction over the subject matter and jurisdiction over the parties. A judgment entered by a court without jurisdiction over the parties is void and may be challenged at any time, either directly or collaterally….”Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party’s voluntary submission to the court’s jurisdiction.” BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (citations omitted)
If you don’t have service…you don’t have a viable divorce case.
‘When a defendant has not been served with process as required by law, the court has no jurisdiction over that defendant and a… judgment entered against him or her is void.” JPMorgan Chase Bank, National Association v. Ivanov, 2014 IL App (1st) 133553
Service only happens if you follow the rules EXACTLY as they are written.
“[T]he service of copies of pleadings shall be according to rules.” 735 ILCS 5/2-201
“It is well settled that strict compliance with statutory requirements in effecting service is essential for the court to obtain personal jurisdiction over the defendant. ” Doe v. Logan, 2021 Ill. App. 191447, 6-7 (Ill. App. Ct. 2021)
In an Illinois divorce, personal service is achieved by physically giving the summons directly to the Respondent or leaving it at their home “usual place of abode.”
“Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode” 735 ILCS 5/2-203(a)
Nowhere is email mentioned in regards to service according the Illinois Code Of Civil Procedure.
“[T]he relevant statutory provisions and supreme court rules do not authorize service of process by email.” IN RE ADOPTION OF MAE, 2022 IL App (5th) 210291 – Ill: Appellate Court, 5th Dist. 2022
Therefore, service cannot be done by email in an Illinois divorce. All other types of notice, however, probably can be effectuated by email communication.
Acceptable Service or Notice By Email In An Illinois Divorce
“If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.” Ill. Sup. Ct. R. 11(a)
In an Illinois divorce, if there is an attorney with an appearance on file, that attorney can receive service and notice via email.
Anything after service of the summons needs service/notice
“Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared” Ill. Sup. Ct. R. 104(b)
If the party is not defaulted or willing to be defaulted, they will have filed an appearance either personally or through an attorney.
That appearance will have an email address on it that allows all future service to occur via email.
“An attorney must include on the appearance and on all pleadings filed in court an e-mail address to which documents and notices will be served in conformance with Rule 131(d).” Ill. Sup. Ct. R. 11(b)
The documents filed, served and/or noticed must likewise have emails for counter-service.
“All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.” Ill. Sup. Ct. R. 131(d)(1)
If there’s not an attorney on the other side in an Illinois divorce but the party has filed their own appearance, they can also be served or noticed via email.
“A self-represented litigant who has an e-mail address must also include the e-mail address on the appearance and on all pleadings filed in court to which documents and notices will be served in conformance with Rule 131(d).” Ill. Sup. Ct. R. 11(b)
If a self-represented, pro se, party wants to file, serve and/or notice anything. They must let the opposing party know they can be served via a specific email.
“All documents filed or served in any cause by a self-represented litigant upon another party shall bear the self-represented litigant’s mailing address and telephone number. Additionally, a self-represented litigant who has an e-mail address must designate a single e-mail address to which service may be directed under Rule 11. If a self-represented litigant does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.” Ill. Sup. Ct. R. 131 (d)(2)
Furthermore, the Circuit Clerk of the County you are being divorced in will also provide notice electronically (is there a different electronic notice that is not email?)
“The circuit clerk may provide notice to a party by hard copy or by electronic notice, pursuant to a uniform and standard policy adopted by the circuit clerk. A recipient may elect to receive notices by hard copy or electronically via the electronic address he or she has registered with the circuit clerk. The clerk must provide notice in the format chosen by the recipient. When providing notice electronically, the circuit clerk shall maintain a copy of the electronic content and a delivery receipt as part of the records of his or her office. Administrative communications of either the clerk or the court are not subject to the electronic notice requirements. If all policies and statutes are complied with, electronic notices shall have the same effect as hard copy notices.” 705 ILCS 105/12.1 (emphasis mine)
All post-summons communication via email is likely to be deemed acceptable notice.
“[S]ome notice, however informal, is greatly to be preferred to none at all.” (Internal quotation marks omitted.) Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 521 (1995)
After all, what is better notice than an email? An email is a permanent self-verifying record of information and where and when the communication was sent.
Post-Judgment Notice In An Illinois Divorce
After an Illinois divorce is over, the automatic acceptability of email is no longer viable after 30 days…because the attorney’s representation expires after 30 days.
“The attorney-client relationship terminates after the judgment of divorce is entered. The notice required after judgment is to the parties and not to their attorneys.” In re Marriage of Ponsart, 118. App. 3d 664, 665 (Ill. App. Ct. 1983
You really have to serve any post-judgment motions to enforce or modify via personal or substitute service.
Most people simply show up and submit themselves to service if they receive an email notice of a motion. They know their ex-spouses are not going to give up so they might as well get the litigation over with.
If you have noticed something up via email and think the “show must go on” as it is the 21st century. If you’ve only gotten an email about your Illinois divorce and nothing else, you probably are not under the jurisdiction of an Illinois divorce court. Either way, contact my Chicago, Illinois family law firm to discuss this matter with an experienced Illinois divorce attorney.
source https://rdklegal.com/service-or-notice-by-email-in-an-illinois-divorce/
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