In re Marriage of Greenberg, 2021 IL App (1st) 210325-U

In re Marriage of Greenberg, No. 1-21-0325-U (Ill. App. Ct., 1st Dist. Sept. 10, 2021) (Rule 23 order)

1) Case citation and parties
- In re Marriage of Greenberg, 2021 IL App (1st) 210325-U (6th Div.). Order filed under Ill. Sup. Ct. R. 23 (non‑precedential). Petitioner-Appellee: Antoinette R. Greenberg. Respondent-Appellant: Ronald I. Greenberg.

2) Key legal issues
- Whether the trial court properly dismissed a motion to compel arbitration where the original written arbitration agreement allegedly signed at the parties’ Orthodox Jewish wedding could not be produced and the movant offered secondary evidence (affidavits, a filled‑in facsimile and a video of the husband signing).
- Whether secondary evidence of a lost contract is admissible under Illinois Rule of Evidence 1004 and whether the court must make substantive arbitrability findings (threshold issues) before denying arbitration.

3) Holding/outcome
- Reversed and remanded. The appellate court concluded the trial court erred by dismissing the motion to compel arbitration without making substantive rulings on arbitrability and on the admissibility of the proffered secondary evidence under Rule 1004.

4) Significant legal reasoning
- Jurisdiction: the denial of a motion to compel arbitration is appealable interlocutorily under Ill. S. Ct. R. 307(a)(1) because the order functions injunctively.
- The court criticized the trial court’s departure into procedural dismissal under section 2‑615 and its wholesale exclusion of secondary evidence under Rule 1004 without addressing substantive issues. Rule 1004 permits secondary evidence when the original is lost or destroyed, provided the absence is accounted for; the appellant presented affidavits from the officiating rabbi and witnesses, plus a video of the husband signing, and alleged diligent search and loss by a third party.
- The appellate panel emphasized that threshold arbitrability questions and evidentiary disputes about the existence/terms of the purported arbitration agreement required adjudication (including an evidentiary hearing), not summary dismissal.

5) Practice implications (for family law attorneys)
- Preserve and attach original arbitration/prenuptial documents to motions to compel; if originals are unavailable, document and prove diligent search and the reason for loss to invoke Rule 1004.
- Where arbitrability depends on existence/terms of a written agreement, request an evidentiary hearing on both admissibility of secondary evidence and the threshold arbitrability issues rather than relying on procedural dismissal.
- When religious/pre‑marital instruments (Ketubah, Beth Din forms) are involved, be prepared to address form provenance, customary practice, who retained copies, and specific clauses (e.g., scope over GET, monetary, custody matters). Anticipate interlocutory appeal under Rule 307 if a court denies arbitration.
- Note risk: child‑custody/support issues may require explicit consent to arbitrate; tailor pleadings to show parties’ intent as to scope.