he traditional 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. This means that you 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 these court appearances. While your attorney should give you information regarding your specific court appearance, there are some more common recommendations for your appearances 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?
Generally, there is 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 results in a divorce. The party initiating the divorce, the plaintiff, must appear in court and testify.
Even if you are the “Defendant” in some cases the judge or your lawyer might request both parties to be in court for the final divorce hearing. Even if you are not required to be present for the divorce proveup, where possible both parties should appear.
An alternative exists where the Defendant files a counter-petition. Then if the other spouse does not appear, the prove-up can be handled based upon the counter-petition.
On the other hand, we are starting to see a number of counties including DuPage County and Kane County that allow prove-ups based upon an affidavit. See the Gitlin Law Firm’s blog that addresses these rules.
In the ordinary non-contested divorce, how many times will I be required to be in court?
It varies from just a proveup at the end of the case to several contested hearings.
- In many, if not in most divorce cases, there is a need to fix the financial arrangements between the parties. The temporary financial arrangements can include:
- Temporary child support, and temporary maintenance.
- Occasionally temporary attorney’s fees.
- Sometimes, cases involve contests over temporary parenting time.
- In temporary relief battles, one party files a petition and the other files a response. When the petitioner seeks financial relief, submission of an accurate financial affidavit is critical in your representation. This is hearings involving temporary financial relief are usually summary in nature and based largely on the affidavits. A full blow evidentiary hearing only takes place if there is good cause shown. 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 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.
Assume that your case is handled traditionally, where you actually go to court rather than appear at a Zoom hearing. If you go to the courthouse for your court appearance, 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, your lawyer will 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. The judge will then swear you in. (You will take an oath or affirm to tell the truth.) Your lawyer will then ask you a series of questions.
The testimony consists of your answering questions about what is contained in the petition for dissolution of marriage. This includes your name, current address, your job, your spouse’s name, occupation, as well as the 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 might summarize to the judge some of the essential 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. The Gitlin Law Firm, before the prove up, sends our client a letter spelling out exactly what will happen in court. We set forth in writing all the questions which will be 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.