Detailed Answer
Disclaimer: This article is for educational purposes and does not constitute legal advice.
After all parties in an Illinois partition action have been served and the time to respond (usually 30 days) has expired, you can move to schedule a hearing on your partition motion. Below are the typical steps under Illinois law:
- Confirm Default or Appearance: Check the court file to see if any defendant filed an appearance or answer. If none did, prepare a motion for default under the Illinois Code of Civil Procedure. 735 ILCS 5/2-1301 allows entry of default against non-appearing parties. 735 ILCS 5/2-1301.
- File Default and Proposed Order: Submit your motion for default judgment and a proposed order to the clerk. The clerk will enter default if the judge signs off.
- Prepare Motion or Petition for Partition Hearing: Draft a written motion or petition asking the court to conduct a hearing on how to divide or sell the property. Include facts, a legal basis (735 ILCS 5/26-1 et seq.), and a proposed form of decree.
- Set Hearing Date: Contact the court clerk’s office to obtain available hearing dates. Under Supreme Court Rule 219, you must give at least 10 days’ notice of a motion hearing. Check local rules for exact timing.
- Serve Notice of Hearing: Serve each party (even those in default) with the notice of hearing and your motion or petition. If any defendant is unknown or absent, you may need to publish notice under 735 ILCS 5/26-5.
- File Proof of Service: File an affidavit or certificate showing service of the motion and notice on all parties, or proof of publication where required.
- Attend Hearing and Present Evidence: On the hearing date, appear in court, present your evidence (survey, appraisals, witness testimony) and argument. The judge will decide whether to divide the land physically or order a sale.
- Obtain Decree of Partition: If the court grants your motion, it will issue a written decree outlining how to distribute or sell the property. You may need further motions to implement sale and distribute proceeds.
Helpful Hints
- Review 735 ILCS 5/26-1 et seq. for detailed partition procedures.
- Confirm local circuit court rules on motion practice and hearing schedules.
- Use certified mail or process server to ensure proper service and avoid challenges.
- Prepare clear exhibits (plats, deeds) to help the judge understand property boundaries.
- File early and allow extra time for service by publication if needed.
- Consider consulting a real estate attorney for complex property disputes.