Trial of a Family Law Case: Divorce, Paternity, Allocation of Parenting Time/Responsibility [Custody], child relocation [removal], etc.
While most family law cases settle, if a case does not settle, there will need to be a trial. At the trial, the judge hears evidence and makes a decision. The length of the trial differs depending on the type of case. But generally the trial procedure is fairly similar.
Is it likely that my case will go to trial?
No. About 95% of all cases that are filed in court are settled. This includes family law cases such as divorce,
custody* and paternity. What had been “custody” we now call “allocation of parental responsibilities.” And this breaks down into two issues: decision making and parenting time.
Will the case be tried by a jury?
No. In Illinois family law cases are decided by a judge.
How long does it take to get a case to trial?
Cases that are settled have a hearing within several weeks after settlement and the agreement is signed. If a case is not settled, and must go to trial, in McHenry County and other collar counties and Northeastern Illinois, you are usually looking at between one and two years after the suit is filed before trial starts, largely because of the need for fact gathering (“discovery”). Some counties such as Lake County create tracks for a divorce case. For example, Lake County has an expedited (fast) track, standard track and complex track.
What are the significant steps in preparation for trial?
Discovery and a pre-trial conference. Discovery is the procedure by which you and your lawyer gain the facts that should be brought out at trial. Part of discovery includes so called Rule 213(f) disclosure of witnesses. This Rule requires disclosure of the identify and the nature of the testimony of the three different types of witnesses.
A pre-trial conference (also called a settlement conference) is a session, in chambers (judge’s office). Each party’s lawyer informs the judge the facts of the case and takes settlement positions that should be backed up with the law.
The judge usually makes a settlement suggestion. We call this suggestion a “recommendation.” The court’s recommendations are the judge’s way of saying: “If at trial the facts come out the same way as I understand them to be now, my ruling would likely be X, Y, or Z.”
Some judges, on the day of the trial, and immediately before the trial, will call the lawyers in for a last shot at a settlement.
What are opening statements?
Before actual evidence is produced, the lawyers for each party have the right to an opening statement — the opportunity to tell the judge what they expect to prove and what their positions are. This can be waived.
How does my lawyer prepare for a trial?
Your lawyer should have outlined the testimony of each witness as a basis for questioning the witnesses, and be prepared to cross examine the witnesses who testify for the other side on the basis of depositions of those witnesses. Your lawyer should also have researched the law applicable to your case and have notes, or a memorandum/brief on the law applicable to your case.
What is the difference between direct examination and cross examination?
In direct examination your lawyer questions you and witnesses called in your behalf. At the conclusion of the direct examination the other lawyer has a right to question (“cross examine”) the witness and it is usually done in an attempt to discredit the testimony.
Is only what is testified to by a witness important, or is demeanor also significant?
A judge passes on the reliability and truthfulness of a witness. The court evaluates the witnesses credibility not only by the actual words the witness states. Instead, the court credibility determinations consider the way the witnesses demeanor (body language, etc.) and the consistency of the testimony to the documents that are introduced into evidence.
When does the judge decide the case in their mind?
Ideally after all the evidence has been heard. In jury cases, jurors are instructed by the judge, before the case begins, not to decide the case until they have heard all the evidence, but a study has shown that jurors determine how they are going to decide the case about a third of the way through the evidence.
Judges may be a little bit more patient, but we believe judges start the overall decision-making process before all the evidence is received. The preliminary stages of a case can include potential hearings on matters such as temporary child support, a temporary parenting plan, etc.
The judge may, at these stages, before trial, start developing a sense of the case. This is the reason that the preliminary stages of a case are highly significant.
What are closing statements?
After all the evidence has been presented each lawyer summarizes the evidence and argues in favor of the client’s position. Usually in more complicated trials, the closing statements are made in writing. Traditionally, the Plaintiff would first submit a written closing followed by the Defendant. But with the compressed time frames required under the 2016 Rewrite to Illinois divorce law, judges more often require written closing arguments to be exchanged at the same time in complex cases.
What comes next?
After written closing statements, the judge issues his or her decision in more complex cases through a Memorandum of Opinion. One of the lawyers then must write out the terms of the Judgment for Dissolution consistent with the court’s decision. Occasionally, the court will simply submit its own Judgment.
What can I do if I don’t like the judge’s ruling?
Your lawyer can move to reconsider the trial court’s decision or file notice of appearance starting the appeal process.
What happens with most appeals?
The odds tend to be against garden-variety decisions made by the trial court. An appeal is not a new trial. An appeal goes to a different, a higher, court. In Illinois, the appeal goes to a three justice court. The appellate court does not hear any evidence. It has available for its consideration the record. This record consists of—
- All of the the documents that were filed and entered in the trial court;
- The transcripts of the testimony of all witnesses;
- All of the documents that were introduced into evidence.
The lawyers for each side file briefs. These briefs summarize the facts and argue the law in favor of the client. Then certain cases involve oral arguments. In others, the appellate panel merely issues its decision.
What is the standard used to review trial court decisions?
Because many cases involve the issue of whether the trial court abused its discretion, appellate courts are more apt to affirm the trial court than reverse it. There are cases that involve issues or law. For the construction of a settlement agreement or issues of law, the appellate court determines certain issues with a de novo review (like a new matter). This is the easiest form of review. Your appellate lawyer will need to articulate the standard for review in the appellate brief.