The traditional adversarial divorce process in Illinois typically involves several court appearances. Compare this to collaborative divorce, where essentially the only court appearance (other than the one seeking to stay the proceedings) is the prove-up (whose meaning is discussed below). For this reason (and others), our firm has found that collaborative representation is less expensive and more efficient.
Generally, in traditional divorce representation for most court appearance, you and your spouse will appear by your attorneys, that is, you will not need to be personally present. But if temporary issues need to be litigated and the court needs to hear evidence, you will need to be present for certain court appearances. While your attorney should give you information regarding your specific court appearance, there are some more common parts of appearing in contested and non-contested divorce cases.
My divorce case is going to be settled “outside of court.” Will I have to appear in court to have the divorce finalized?
A 50 percent chance. A final divorce judgment can only be entered by a judge. The signing of a marital (divorce) settlement agreement does not divorce you. Only a divorce judgment signed by a judge can result in a divorce. The party initiating the divorce, the plaintiff, must appear in court and testify.
In some counties (not in McHenry County), the judge requires both parties to be in court for the final divorce hearing. Even if you are the “defendant,” however, your lawyer may request that you are present for the final hearing so you may confirm (be examined) regarding your understanding of the marital settlement agreement.
In the ordinary non-contested divorce, how many times will I be required to be in court?
- In many, if not in most divorce cases, there is a need to fix the financial arrangements between the parties (temporary child support, maybe temporary maintenance, maybe temporary attorney fees and sometimes child custody and visitation) during the pendency of the divorce proceedings. The court is petitioned and the parties appear before the court, unless the parties and their lawyers agree to what the temporary relief order will state. These hearings are in the morning and judges usually limit the hearing time to about 20 minutes. You may be called to testify unless the decision is simply made on the basis of financial affidavits and arguments. If an extended hearing is required, the hearing in McHenry County will be in the afternoon. But the time when contested hearings are held varies from county to county.
- The rules of court require both lawyers and clients to be present in court for a Pretrial Conference. The Pretrial Conference is also called a settlement conference. It is an attempt to settle the case with the judge’s help. It is conducted in the judge’s office (chambers) with the lawyers. But the parties should generally be present (and wait in the hallway). That way, if the judge makes a settlement recommendation, the lawyers and their clients can discuss it and, if necessary, the judge may speak directly to the parties.
- The final divorce hearing at which, per the above, the plaintiff is required to appear, and the other party, the defendant, may be required to appear. This is called the prove-up.
What happens at the final divorce hearing if there is a settlement agreement?
Your hearing, if your lawyer is efficient, will last about five minutes, but it may last as long as ten minutes. Your lawyer will tell you what time to appear in court. In McHenry County there are usually not more than ten divorce cases on the court’s call for final divorce hearings. Your place on the court’s “call” (calendar) depends on how early your lawyer or opposing counsel asked for your case to be heard.
You will be sitting in the back of the courtroom, the gallery. Your lawyer will be sitting towards the front of the courtroom at a table where lawyers sit. If you are not first on the call you will have an opportunity to listen and see the cases before you.
When the judge calls the name of your case your lawyer will proceed to stand in front of the judge and you will make your way from the gallery to stand beside your lawyer. Assuming you are the plaintiff, your lawyer will tell the judge, very briefly, what the case is about.
For example, he will state the number of children, confirm attendance at the required parenting class, indicate whether a parenting plan has been entered previously and let the judge know that there is a marital settlement agreement. After that the judge will swear you in. (You will take an oath or affirm to tell the truth.) You will then be examined (asked questions) by your lawyer.
The examination, in essence, consists of your lawyer having you testify as to what is written in the petition for dissolution of marriage, such as your name, address, occupation, your spouse’s name, occupation, names and ages of your children.
In addition your lawyer will have you testify as to the general nature of the marital settlement agreement (MSA). Your lawyer will show you the MSA and ask you if that is your signature on it. The lawyer will then summarize to the judge the provisions of the MSA. Your lawyer will next turn to you and ask you if you understand the terms of the MSA.
If there is a waiver of maintenance (alimony) your lawyer will ask you if you understand what the waiver of maintenance means. The lawyer for your spouse may cross examine you. This cross examination is not meant to put you on the spot.
The other lawyer will merely ask you a few questions to verify that you understand the terms of the agreement, and if there is a waiver of maintenance, that you understand the consequences of the waiver of maintenance.
After the examination is finished your lawyer will hand the judge the divorce judgment the lawyer prepared and the judge will, after examining the MSA momentarily, sign it. You are then divorced. H. Joseph Gitlin Law Office, before the prove up, sends our client a letter spelling out exactly what will happen in court and we set forth in writing all the questions which will be orally asked of our client in court.
Your above comments were for the “ordinary” case. What about the hotly contested case?
In hotly contested cases the lawyers may be in court far more regularly.