While serving different fundamental purposes in a divorce action, summary judgment and declaratory judgment can be effective tools to short-circuit issues in a case.
Summary judgment is a procedural device under section 2-1005 of the Illinois Code of Civil Procedure allowing either party to seek a judgment in their favor as to all or any part of the requested relief. While a court adjudicating a summary judgment motion is permitted to consider all pleadings, depositions, admissions and affidavits on file, such relief is only appropriate where there is no genuine issue of material fact as to the major issue. Equally useful is an action for declaratory judgment—a substantive remedy allowing courts to make binding declarations of rights where an actual controversy exists having the effect of a final judgment pursuant to section 2-701 of the Code.
The former resolves the merits of an underlying dispute while the latter addresses legal questions about the parties’ rights or legal status. Among the various uses of these devices in the context of divorce, consider an action for declaratory judgment to determine the validity or interpretation of a disputed pre/postnuptial agreement. Alternatively, consider summary judgment as to a pre/postnuptial agreement where there is no dispute as to the facts and circumstances surrounding the agreement’s creation. Other uses for declaratory relief and summary judgment include resolution of property classification; the parties’ rights under trusts or other contracts relevant to the divorce; and post-judgment disputes as to the effect of marital settlement agreements or judgments allocating property and support.
Jamie R. Fisher, Partner
For more on Ms. Fisher, please visit: www.beermannlaw.com/team/jamie-r-fisher/.
