Going to Trial in a Divorce Case

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 will hear evidence and make a decision.  The length of the trial will be different 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” as of January 1, 2016 is now titled, “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 have created 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. A pre-trial conference (also called a settlement conference) is a session, in chambers (judge’s office) in which each party, through her or his lawyer, informs the judge the facts of the case, takes a settlement position and backs up that settlement position with the law.

The judge usually makes a settlement suggestion. Often a settlement suggestion made by the judge is stated in terms of, “If at trial the facts come out the same way as I understand them to be now, my ruling is likely * * *.”

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. This is evaluated not only by the actual words the witness states, but the way he states the words and demeanor (body language, etc.) when the witness is testifying.

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 that some judges “decide” a case before all the evidence is received, and that judges develop a bias about the case while it is going through its preliminary stages, for example, as a result of a preliminary hearing on such matters as temporary child support, temporary parenting plan, etc.

The judge may, at these stages, before trial, start developing a sense of the case, so the judge’s decision about the case could be formulated before all the evidence is heard. 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.

Can I appeal if I do not like the judge’s ruling?

Yes, but the odds are against your winning in most cases. 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 considers the papers and orders that were filed and entered in the trial court, the transcript of all the testimony that was given and it reviews all the documents that were introduced into evidence.

The lawyers for each side file briefs in which they summarize the facts and argue the law in favor of the client.  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.