Too often, critical issues in divorce cases are left unresolved for the months (or years) that pass between the filing of a Petition for Dissolution of Marriage and the commencement of trial. Issues as fundamental as the validity of a prenuptial agreement, the existence of grounds for a divorce, or the characterization of nonmarital property can often be resolved in advance of trial. Both the Motion for Partial Summary Judgment and the Motion for Declaratory Judgment are powerful, underutilized tools to capture these opportunities.

The potential benefits presented by these motions are numerous for both the client and the attorney. They include the following:

• Winning a Motion for Partial Summary Judgment or a Motion for Declaratory Judgment can significantly increase the pressure on the opposing party to agree to a reasonable settlement. For example, a finding that a parcel of real estate or an investment account is nonmarital, and, therefore, must be awarded to its owner in the divorce, imposes a “reality check” on the other party who may have held out hopes of being awarded some or all of the property. It also increases the likelihood that the opposing party will receive a full explanation from his or her counsel of the difference between marital and nonmarital property and the realistic impact this distinction may have in his or her case.

• Trial issues can be narrowed down to legitimate controversies. At the trial of even the most basic divorce proceeding, there will undoubtedly be numerous points and issues for the judge’s attention. By limiting the trial to the genuine factual and legal disputes, you can shorten the trial and sharpen its focus.

• Costs, in both dollars and time, can be reduced. Spending a few hours on a Motion for Partial Summary Judgment upfront may save the client significant time and money by increasing the chances for settlement. That increased pressure favoring settlement also decreases the likelihood that numerous hours will be spent on trial preparation, with the major commitments in time and money it entails. Settlement on the eve of a trial is certainly less expensive than ruling after days of trial, but is still much more costly that settlement well in advance of trial. Likewise, the attorney is also better off resolving the key issues as soon as possible, thereby reducing the time pressures he or she will face as trial approaches.

The Use of Summary Judgment and Partial Summary Judgment
in Divorce Practice

Over the past fifty years, the Illinois legislature has consistently expanded the use of summary judgment. Prior to 1957, summary judgment was only available in four types of actions. The 1957 amendment to the summary judgment statute permitted summary judgment to be used in connection with any cause of action in Illinois courts. The Illinois Supreme Court commended this change in the 1958 case of Allen v. Meyer, stating,

We regard this as a salutary development. Summary judgment procedure is an important tool in the administration of justice…The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials. Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d578, 580 (Ill.1958)

The use of summary judgment in Illinois was further expanded by statutory amendment in 1985. That amendment permitted the use of partial summary judgment to dispose of one or more major issues in a case without the need to resolve the case in its entirety. In the context of a pre-decree divorcing procedure, it is difficult to imagine a scenario in which the entire case could be disposed of through summary judgment. As a result, the 1985 amendment allowing for partial summary judgment greatly increased the utility of summary judgment in divorce practice.

The section of the Illinois Code of Civil Procedure allowing for the use of partial summary judgment is 735 ILCS 5/2-4005(d), which states,

Summary determination of major issues. If the court determines that there is no genuine issue of marital fact as to one or more of the major issues in the case, but that substantial controversy exists with respect to other major issues, or if a party moves for a summary determination of one or more, but less than all, of the major issues of the case, and the court finds that there is no genuine issue of material fact as to that issue or those issues, the court shall thereupon draw an order specifying the major issue or issues that appear without substantial controversy, and directing such further proceedings upon the remaining undetermined issues as are just. Upon the trial of the case, the fact so specified shall be deemed established, and trial shall be conducted accordingly.

Since the enactment of the 1985 amendment to the summary judgment statute, there have been many reported cases in Illinois where partial summary judgment is used in the context of divorce. Despite these developments, many divorce practitioners are still not familiar with the use of the Motion for Partial Summary Judgment. Occasionally, a party will still file a Response or a Motion to Strike a Motion for Partial Summary Judgment, arguing that summary judgment is not an available mechanism in divorce litigation. The argument is without merit and is easily disposed of. Section 105 of the Illinois Marriage and Dissolution and Marriage Act states;

105. Application of Civil Practice Law. (a) The provisions of the Civil Practice Law shall apply to all proceedings under this Act, except as otherwise provided in this Act. 750 ILCS 5/105.

Needless to say, there is no provision of the Illinois Marriage and Dissolution of Marriage Act restricting the application of the summary judgment provisions of the Illinois Code of Civil Procedure. In addition, the numerous appellate cases dealing with summary judgment in divorce focus on whether the summary judgment relief requested was granted or denied, not whether the mechanism is available. The legislative intent in expanding the use of summary judgment, first to all causes of action in Illinois and later to partial summary judgment, makes clear that this is a favored approach to resolving both cases and issues throughout Illinois litigation practice. A finding that summary judgment or partial summary judgment is not available in Illinois family practice would be inconsistent with Section 105 of the Illinois Marriage and Dissolution of Marriage Act, the summary judgment provision of the Illinois Code of Civil Procedure, as well as public policy as expressed by the Illinois legislature and interpreted by the Illinois Supreme Court.

A petitioner may move for summary judgment on any and all part of the relief sought at any time after the opposite party has appeared or after the time within which the opposing party is required to appear has expired. 735 ILCS 5/2-1005(a). A respondent may move for summary judgment at any time. 735 ILCS 5/2-1005(b). However, motions for summary judgment must be filed before the last date, if any, set by the trial court for the filing of dispositive motions. Supreme Court Rule 191(a).

A motion for summary judgment may be brought with or without supporting affidavits. 735 ILCS 5/2-1005(a-b). However, in most instances affidavits will be appropriate, if for no other purpose than to verify the authenticity of the documents relied upon in the motion. Any affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants, shall set forth the facts upon which the claim is based and shall affirmatively show the affiant, if sworn as a witness, can testify competently thereto. Supreme Court Rule 191(a).

Situations to Consider Using Summary Judgment

Partial summary judgment can be useful in a pre-decree stage of divorce proceedings (before a Judgment for Dissolution is entered by the court) in a number of ways. In the post-decree setting (after the parties are divorced), partial summary judgment may still be useful and the opportunities to use full summary judgment are expanded. Some of the situations in which partial summary judgment or full summary judgment may be appropriate include the following.

1. Characterization of Property as Nonmarital. Probably the most common use of partial summary judgment at the practice level is to obtain a finding that property is nonmarital. Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act defines nonmarital property as including property acquired by gift, legacy or descent, property acquired before the marriage, and property acquired in exchange for property acquired before the marriage.

It is generally easier to succeed with a Motion for Partial Summary Judgment to establish nonmarital property when the property in question is discrete, such as real estate or personal property. So long as the party owning the property has not done anything to change the character of the property, for example, transferring inherited or premarital real estate into joint tenancy, the Motion for Partial Summary Judgment can be a straightforward proposition.

Bank and investment accounts should be carefully reviewed for marital contributions before bringing a Motion for Partial Summary Judgment. The benefit of a finding that the property is nonmarital needs to be balanced against the risk of alerting opposing counsel to possible claims for marital reimbursement. Marital reimbursement can also come into play when marital funds are used to remodel a nonmarital residence, pay down the principal on a nonmarital mortgage, or infuse capital into a nonmarital business.

Although the presumption exists that property acquired during the marriage is marital, there is some support for the use of a summary judgment to establish that property is marital. In the In Re Marriage of Palacios case (see below), the court made a finding of summary judgment that lottery winnings acquired during the marriage were marital. This may be a good strategy when an opposing party makes a fatally flawed claim of nonmarital property in his or her pleadings.

2. Existence of Grounds for Dissolution. While contests over grounds for divorce are much less common today than they were before no-fault divorce in Illinois, they still arise from time to time. Although there are no reported cases in Illinois upholding a finding of irreconcilable differences pursuant to a motion for partial summary judgment, the In Re Marriage of Smoller case, 218 Ill.App.3d.340, 578 N.E. 2d 256 (1st. Dist. 1991), opens the door for this approach. The appellate court in Smoller found that where the two-year separation requirement was met, the desire of one party to terminate the marriage was in itself sufficient to establish the existence of irreconcilable differences, 218 Ill.App.3d at 345. Given the right factual situation, such as an admission in pleadings or in a party’s deposition, partial summary judgment could also be used to establish the existence of fault grounds.

3. Vacating a Judgment for Dissolution. The use of summary judgment has been upheld to both grant and deny relief upon a Motion to Vacate a Judgment for Dissolution under Section 2-1401 of the Code of Civil Procedure. In In Re Marriage of Palacios, 275 Ill.App.3d 561, 656 N.E.2d 107 (1st Dist, 1995), the appellate court upheld the grant of summary judgment in favor of the wife’s Motion to Vacate. In that case, the husband had failed to reveal that he had won $5.38 million in the Illinois lottery just before filing for divorce. The husband hid the winning ticket in a safety deposit box until several months after the Judgment for Dissolution of Marriage was entered. The appellate court also found that he lied to both lottery officials and the media about when he discovered the winning ticket. The court found that the husband’s counteraffidavit to the Motion for Summary Judgment, in which he denied misrepresenting the extent of his assets, was insufficient to create a genuine issue of material fact when that denial was contradicted by his deposition testimony that he knew he had won the lottery two days before he filed for divorce. “The mere suggestion that a genuine issue of material fact exists without supporting documentation does not create an issue of material fact precluding summary Judgment.” Palacios 275Ill.App.3d at 568.

The opposite result was reached in In Re Marriage of Halas, 173 Ill.App.3d 218, 527 N.E.2d 474 (1st Dist. 1988), in which the trial court granted a motion for summary judgment against Therese Halas, who had filed a Motion to Vacate her Judgment of Dissolution under Section 2-1401 of the Code of Civil Procedure. The trial court found that she had not shown due diligence in filing her motion to vacate or in pursuing discovery when the divorce was pending. Against her counsel’s recommendations, she had relied on informal discovery, including a handwritten list of assets prepared by George S. Halas, Jr. and a valuation of the Chicago Bears which had been prepared solely for tax purposes.

4. Establishing Paternity. In In Re Marriage of Slayton, 292 Ill.App.3d 379, 685 N.E.2d 1038 (4th Dist, 1997), the trial court granted summary judgment on the issue of paternity after blood tests showed a 99.8% chance that Jeffrey Slayton was the father of the child in question.

5. Child Support Arrearages. In Wilson v. Wilson, 159 Ill.App.3d 1091, 513 N.E.2d 121 (1st Dist. 1987), the trial court granted summary judgment in favor of the wife as to the amount of a child support arrearage. The appellate court found that summary judgment should not have been granted because the ex-husband’s counteraffidavit, in which he stated that he had paid the amount due, was sufficient to raise a genuine issue of material fact.

6. Modification of Support. In In Re Marriage of MacFarlane, 160 Ill.App.3d 721, 513 N.E.2d 1146 (2nd Dist, 1987), the trial court granted summary judgment in favor of the ex-wife when the ex-husband sought to decrease or terminate her support. The court found that the support provisions of the parties’ marital settlement agreement were not modifiable on the grounds cited by the husband in his pleadings. The appellate court affirmed the granting of summary judgment in the wife’s favor.

7. Enforcing a Prenuptial Agreement. Theoretically, the issue of whether a prenuptial agreement is enforceable should be amenable to resolution by way of a Motion for Partial Summary Judgment. However, the common practice is to use a Motion for Declaratory Judgment. This is largely due to the In Re Marriage of Byrne case 179 Ill.App.3d 944, 535 N.E.2d 14 (1st Dist. 1989), in which the trial court entered a declaratory judgment that a prenuptial agreement was valid. The appellate court upheld the trial court’s ruling.

The examples cited above are not intended as a comprehensive list of the uses for summary judgment in divorce litigation. Rather, they are intended as a starting point to think about the use of summary judgment, partial summary judgment and declaratory judgments in family law, and how these tools can benefit your client and your practice. Certainly, there are other divorce litigation situations in which partial summary judgment could be useful. Being prepared to utilize these tools when the right fact situation arises can save you time and energy and increase the chance of a more favorable outcome for your client.