As technology continues to advance and social networking continues to become the preferred means of communication, especially for the younger generations, the world seems to be only a click of the mouse away. Social networks such as Facebook, Twitter, and Instagram allow individuals from all over the world to communicate and connect in ways never previously possible. Other social network sites, such as “EHarmony.com” and “Match.com” have become so popular that not a day does go by without seeing a web advertisement for “EHarmony.com” or seeing a commercial on the television for “Match.com.” Individuals are able to explore the reality of dating an individual who may reside halfway across the world. To many, this new reality seems like a dream come true! However, with great advancements, ultimately, complications always arise. Due to the increasing rate of marriages between individuals from all over the world, Courts oftentimes find themselves in jurisdictional nightmares.

Let’s begin with a real life scenario: A woman from Naples, Italy marries a man from Dublin, Ireland, on the coast of Ireland. Shortly thereafter, the couple buy a home in Rome, Italy and live in that home for two blissful years. The Italian wife visits family in Chicago, Illinois on two separate occasions during the marriage; however, her Irish husband never accompanied her on these visits nor has he ever been to the United States. As years go by, the woman begins to have conversations with her Irish husband about wanting to move to the United States to be closer to her family. Her Irish husband refuses to move from the marital residence in Rome, Italy.
The Italian woman, without her Irish husband, leaves to visit her family in Chicago, Illinois for approximately one month. After one month, the Italian woman travels to Hinsdale, Illinois, where she moves in with a family friend and immediately starts paying rent. Soon thereafter, the Italian woman decides that she wants to start a new life in Hinsdale and that if her Irish husband refuses to move to Illinois that she wants a divorce. The Italian woman spends approximately two months in Hinsdale, and then contacts her Irish husband about living in Illinois.  The Irish husband tells his Italian wife that he will never move to the United States and that he does not agree to a divorce because of his strong religious convictions. Soon after speaking with her Irish husband, the Italian wife hires a divorce attorney in DuPage County, Illinois.

The Italian wife asks her attorney the following questions:

(1) Can I obtain a divorce in Illinois?

(2) Can I obtain a divorce if my husband does not agree to get a divorce?

(3) If I am granted a divorce, who gets to keep our home in Rome, Italy?

Each of these questions must be carefully analyzed under the law of the jurisdiction where the Italian woman files her divorce proceedings. In the scenario provided above, the aforementioned questions will be analyzed pursuant to Illinois laws, more specifically the Illinois Code of Civil Procedure and the Illinois Marriage and Dissolution of Marriage Act (hereinafter referred to as “IMDMA”).

Question 1: Yes. Section 401(a) of the IMDMA provides in pertinent part, “the court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding.” 750 ILCS 5/401(a).  Here, the Italian woman has been a resident of Illinois for at least 90 days. She has maintained a residence in Illinois, by paying rent and intending to permanently reside in Illinois.

Question 2: Yes. As provided in Section 401 of the IMDMA, only one of the spouses needs to be a resident of the State for 90 days prior to filing a Petition for Dissolution of Marriage.  Normally, lawsuits in Illinois require the court to have both personal jurisdiction (power over the person) and subject matter jurisdiction (power to hear cases of a particular type); however, divorce law is slightly different.

Applicable Illinois caselaw, provides in pertinent part:

• “A party who moves into Illinois without her spouse may be able to obtain a dissolution of marriage after 90 days of residence, even without personal jurisdiction over her spouse. In re the Marriage of Passiales, 144 Ill. App. 3d 629, 637 (1st Dist. 1986).

• “It is plain that each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.” Williams v. North Carolina, 317 U.S. 287, 299 (1942).

Therefore, the Irish husband does not need to agree for the Italian wife to obtain a divorce in Illinois; however, the Italian wife must properly serve her Irish husband with notice of her Petition for Dissolution of Marriage and Summons as required under Section 2-208 of the Illinois Code of Civil Procedure regarding personal service on individuals outside the state. 735 ILCS 5/2-208.

Question 3: This question can be tricky. The  short answer is that Illinois Courts may not adjudicate any issues regarding division of assets, debts, support, maintenance or any other financial issues.  Illinois caselaw provides that “before the Court can enter binding orders relating to property, such as an allocation of a marital estate or an award of maintenance, it must have personal jurisdiction over the parties.” In re the Marriage of Hoover, 314 Ill. App. 3d 707, 709 (4th Dist. 2000).  Therefore, the Italian woman may obtain a divorce in DuPage County, Illinois without her husband’s consent; however, the Illinois Court will likely reserve, or not adjudicate, disposition of the marital home in Rome, Italy until such time as it has personal jurisdiction over the Irish husband.

It is best to consult an attorney before making any quick decisionsthat may permanently affect your future.

by Kristin Flanagan