Re-tying the Knot

Is there a time limit to undo a divorce your spouse got from you that you didn’t know about?

In most scenarios, you and your spouse will talk to each other and agree to separate before obtaining a divorce. However, that may not always be the case. Sometimes, your spouse will go behind your back and get a divorce without letting you know. In these situations, it’s common for you to find out about the divorce years later. In Illinois, there are legal remedies to ensure that these types of divorces are vacated, no matter how long it’s been since your spouse went and got a divorce without you knowing.

What are the general rules for vacating a divorce?

In Illinois, a final order or judgment, which includes a Judgment for Dissolution of Marriage, can be vacated within 30 days of the entry (735 ILCS 5/2-1301(e)). After those 30 days are up, vacating your divorce becomes extremely more difficult unless you have certain mitigating factors. If certain factors are present, that 30-day window does not apply to you, and instead, you have the ability to vacate your divorce years after it was entered. In fact, an Illinois court vacated a divorce 50 years after it was obtained because the wife was unaware she was divorced from her husband until after his death (See In re Estate of Panagiotis).

Fraudulent behavior

One of the most common mitigating factors that courts take into account to determine whether or not to vacate a divorce is fraudulent behavior. If your spouse acted fraudulently to obtain a divorce (i.e., got a divorce behind your back), you have the ability to vacate the divorce once you find out, even if you find out years down the line. Illinois courts have ruled that divorces can be vacated after the traditional 30-day period to ensure that each spouse obtained a fair divorce. (See In re the Marriage of Palacios). Illinois courts agree that obtaining a divorce behind a spouse’s back is not a fair divorce, and therefore, there should be remedies to vacate it years later. The courts have a vested interest in upholding agreements, especially divorce agreements, but courts are nonetheless hesitant to uphold them if they are unfair to one party, especially when one party was completely unaware of the agreement at all. Because of this, the courts are much more lenient on the time in which a divorce can be vacated – and extend the time so that fraudulent divorces have remedies long after 30 days.

Performing your due diligence

Even if your spouse obtained a divorce behind your back, you still have to prove that you did your “due diligence” before you can vacate the divorce. Due diligence, in the legal sense, means that you investigated, to the best of your ability, the situation at hand. So, for example, if your spouse wrote you a note saying that he divorced you ten years ago and you do nothing for ten years, you did not perform your due diligence. But, if you find out you are in fact divorced, and you have been for 20 years, and you immediately call an attorney, you have met your due diligence requirements.

Once you prove that you performed your due diligence in regard to the fraudulent divorce, the courts, no matter how many years it’s been since your spouse obtained the divorce, will vacate your divorce. But that being said, it is important that you act quickly if and when you do find out you’ve been divorced from your spouse.