In 2023, now that Covid is endemic we have Supreme Court Rule 45 that tried to fight against counties going back to the status quo ante. So, we can now see it’s impact on family law cases. This includes the all-important prove-up. Courts continue to allow prove-up of our cases via a remote Zoom hearing. Yet in certain counties including DuPage County, Kane County (and by permission in McHenry County), Illinois, the parties to a divorce can obtain a divorced based upon affidavits—without a court appearance.
I discuss the current rules / and standing orders in certain counties that allow for remote prove-ups in divorce case. This post also addresses 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 divorce (dissolution of marriage) and an agreed upon parenting plan (if it hasn’t been entered earlier). At the prove-up only one of the parties needs to be present (either the petitioner–or in the case of a counter-petition, the counter-petitioner). A court reporter will be present and the court reporter is paid after the prove-up. Then, the court enters the divorce judgment and incorporates the marital settlement agreement (in lawyers’ vernacular the MSA). If cases with minor children the court will also approve and enter the agreed upon parenting plan (unless it has earlier been entered independently, where the it will recite 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 generally follows the 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’s merely a custom. But it’s a custom still required in most counties.
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 language mean?
It says that the terms of the written divorce document control–even if the testimony at the prove-up differs.
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) (as of 2023 only allowed with the permission of the judge)
- 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 Kane or McHenry County, please contact me and I will provide one.
What are the key findings by the judge at the proveup??
The court will issue a judgment granting the divorce if it finds the terms that the parties have reached to be “not unconscionable.” (Generally speaking, in order for an agreement to be found unconscionable, the terms must be plainly and egregiously lopsided and unfair.)
Gunnar J. Gitlin