In this article, we will explain post-trial motions in Illinois divorce and answer the question, “what are your options if a divorce judge rules against you?”
What Are Your Options if the Judge Rules Against You in a Divorce or Child Custody Case?
If a judge rules against you in a divorce or child custody case, you have several options. Which option is most appropriate depends on your specific circumstances. These options include:
- Motion to vacate a default judgment;
- Motion to reconsider;
- Petition for relief from judgment; and
- Appeal.
You can click on each of the links above for a more in-depth article explaining each of the options in more detail.
Motions to vacate a default judgment in Illinois divorce and child custody cases
If a party to a case who has been properly served with process fails to timely file a pleading or appear for a required court appearance, the court may rule in favor of the other party without a hearing. This is known as a default judgment.
A default judgment can be overturned by filing a motion to vacate the default judgment within 30 days of the entry of the default judgment. The trial court has discretion to grant or deny a timely motion to vacate. However, trial courts have been instructed by the Illinois Supreme Court to liberally grant motions to vacate that are filed within the 30 day deadline. The standard that courts use in determining whether to grant a motion to vacate is whether substantial justice is being done between the parties, and whether it is reasonable under the circumstances to compel the other party to go to trial on the merits of the case.
For more, check out our article: Illinois Default Judgments Explained.
Motions to Reconsider in Illinois Divorce and Child Custody Cases
Motions to reconsider ask the trial court to review and overturn their own order based on one of three situations:
- The discovery of new evidence that could not have been discovered prior to the original trial;
- A change in the law since the entry of the original order; or
- A misapplication by the court of existing law.
Motions to reconsider must be filed within 30 days of the order in question.
For more, check out our article: Motions to Reconsider a Divorce Judgment in Illinois.
Petitions for relief from judgment in Illinois divorce and child custody cases
Petitions for relief from judgment may be filed if a meritorious claim or defense exists that through no fault of the petitioner was not presented at the original hearing and that would cause the court to reverse its ruling.
Petitions for relief from judgment are typically filed if new evidence is discovered after trial, if the person against whom the underlying judgment was entered was not properly served with process, or if a divorce or child custody settlement was was unconscionable or the result of fraud or duress.
The deadline to file a petition for relief from judgment is two years after the entry of the order in question. This deadline can be extended if the new evidence in question was fraudulently concealed from the petitioner or if the petitioner was incapacitated during part of the deadline period. The deadline also does not apply to a petition for relief from judgment based on improper service. However, even in these cases, the petitioner is required to act with diligence in filing the petition.
To learn more, check out our article: Petitions for Relief From Judgment in Illinois.
Appeals of Illinois divorce and child custody orders
All of the options we have discussed thus far are motions requesting the trial court that entered the order in question to overturn its own order. Appeals ask a higher court to review the order of the trial court and overturn it.
The general rule is that only final judgments disposing of all claims in a case can be appealed. An exception to this rule is when the court enters a final judgment on parenting time and responsibility prior to adjudicating other issues in a divorce. Final judgments on parenting time and responsibility are immediately appealable, even if other issues remain to be decided in the divorce case. Note that temporary or interim child custody orders are not immediately appealable.
A notice of appeal must be filed within 30 days of the judgment that is being appealed. This deadline may be tolled by the filing of a motion to reconsider, meaning that you will have 30 days from the date that a motion to reconsider is decided to file an appeal.
To learn more about Illinois appeal procedure, check out our article: The Illinois Appeal Process Explained.
For appeals of parenting orders, check out: Illinois Child Custody Appeals Explained.
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