Now that Covid had reached its endemic phase, we can now see how it has impacted family law cases. This includes the all-important prove-up. We can continue to prove-up our cases via a remote Zoom hearing. Yet in certain counties including McHenry County, Illinois we the parties to a divorce can obtain a divorced based upon affidavits without a court appearance.
I will discuss new rules / standing orders in certain counties that allow for remote prove-ups in divorce case. This post will address the reason why prove-ups should no longer be necessary in Illinois except in cases of default, where there is not technically a prove-up.
What is a prove-up?
A prove-up is the court appearance that takes place where the court enters the judgment for dissolution of marriage and potentially the agreed upon parenting plan. At the prove-up only one of the parties has needed to be present (either the petitioner or in the case of a counter-petition, the counter-petitioner). A court reporter is generally present and the court report is paid following the prove-up. Then, the court enters the judgment for dissolution of marriage (divorce judgment) and incorporates the marital settlement agreement (in lawyers’ vernacular the MSA) and the agreed upon parenting plan (if there is one unless it has earlier been entered independently, where it will recite then the entry of the parenting plan).
Is a prove-up really necessary?
It is if the judge requires it to be. And while states other than Illinois have allowed prove-ups to take place without the presence of at least one party, Illinois thus far had adopted the historical custom of requiring a prove-up.
What does Illinois law say about a prove-up?
Not a great deal. The closest we come is in 2/401 and 5/405. Section 405 of the divorce law in Illinois provides:
Sec. 405. Hearing on Default – Notice. If the respondent is in default, the court shall proceed to hear the cause upon testimony of petitioner taken in open court, and in no case of default shall the court grant a dissolution of marriage or legal separation or declaration of invalidity of marriage, unless the judge is satisfied that all proper means have been taken to notify the respondent of the pendency of the suit. Whenever the judge is satisfied that the interests of the respondent require it, the court may order such additional notice as may be required. All of the provisions of the Code of Civil Procedure relating to default hearings are applicable to hearings on default.
So what does this mean?
Prove-ups are only required in cases of default. In divorce cases under the current divorce law in Illinois it is merely a custom.
What else does Illinois divorce law prove regarding prove-ups?
There is also language in Section 502(a) and (b) that provides, “Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court, before proceeding to an oral prove up. *** The terms of the agreement incorporated into the judgment are binding if there is any conflict between the terms of the agreement and any testimony made at an uncontested prove-up hearing on the grounds or the substance of the agreement.”
And what does that mean?
What it says. It says that the terms of the written divorce control even if the testimony at the prove-up differs. It also means that the parties cannot alter the terms of their divorce in the prove-up testimony but any changes must be in writing.
What are the different counties doing in Illinois to allow people to get divorced if they have a marital settlement agreement and do not wish to wait while the courts are handling absolutely essential matters only?
Examples of local rules include McHenry County, Kane County and DuPage County that have allowed for remote prove-ups.
- McHenry County Family Law Division Order 2020-02 (22nd Judicial Circuit) (still in place as of 2022)
- Kane County Proveup Protocols (16th Judicial Circuit)
- DuPage County Prove-ups; (18th judicial Circuit)
- Rock Island (14th Judicial Circuit)
If you wish a copy of a form affidavit required for example in McHenry County, please contact me and I will provide one.
Best!
Gunnar J. Gitlin
