Divorce matters can take many paths, ranging from completely uncontested to full-blown litigation. If your case is being set for trial, it is because you have been unable to reach a settlement on at least some of the terms of either your Marital Settlement Agreement (also called an “MSA” for short) or the allocation of parenting time and/or responsibilities of the minor children (formerly known as child custody and visitation). If negotiations do not result in an agreement to the terms of your divorce, the judge will set your matter for trial. So, what happens when your matter is set for trial?
Discovery is a court-authorized and court-enforced method by which each party and their respective attorneys can obtain information necessary to fully understand and litigate the case. Discovery is a tool, but it is not a gamesmanship tool. Judges do not want litigants surprising each other in court. In fact, the more the other side knows about the facts of the case, the more likely it is that the court can propose a settlement that is considered fair and equitable to each side.
The discovery methods used in your case may vary based on the complexity of your case and the willingness of the other party to be forthcoming. The State of Illinois requires each party in a divorce matter to share a financial affidavit (disclosure form) with the other party that lists assets, liabilities, income, and expenses. This form is signed under oath, and sloppy or careless completion of this document can result in a penalty.
Additional discovery can come in the form of subpoenas, depositions, interrogatories, requests for production or inspection, and requests to admit facts and genuineness of documents.
The judge will enter a Case Management Order that sets deadlines for your case. This order will set deadlines for any remaining necessary pleadings, motions, stipulation of facts, exhibits, pretrial memorandums, and discovery deadlines. The order will also set deadlines for disclosing witnesses to the opposing party and will schedule the trial date(s). Your divorce case may be set for one afternoon of trial, or the judge may allocate several days for your trial.
Although you may have done discovery early in the case, you have a duty to seasonally update the opposing party with your discovery. Before trial, you will need to make sure that the other party has an updated financial affidavit and statements from your accounts. It can seem like you must do this step repeatedly if your case takes a while, but that is because, as people continue to live their lives during divorce, financial details are more of a “moving target” rather than a static snapshot in time.
Narrowing Down the Issues for Trial
Divorce litigation is not a series of “gotcha” moments. You should not be litigating every single issue and fact in a divorce. Litigation can be prohibitively expensive, especially if you don’t narrow down the issues and facts that are disputed. Therefore, attorneys may use tools like a request to admit facts, genuineness of documents, and stipulation of facts prior to the divorce trial. Your attorney may also file a Motion in Limine, which will seek to have the judge determine whether to admit or exclude certain evidence before the trial.
If you have minor children, you may have a Guardian ad Litem or a Child Representative appointed to determine what is in the best interests of the children. These attorneys are not neutral parties — as they engage on behalf of the child — but they do engage in alternative dispute resolution and will encourage parties to reach a settlement. A Guardian ad Litem will write a report, which will be used in preparation for trial. A Child Representative does not write a report, but instead offers evidence-based legal arguments and may file motions in the case.
The Day of Trial
You may have had a pretrial conference with the judge prior to setting the matter for trial. On the day of trial, the judge may offer to give one last pretrial to try and resolve your divorce without having to call any witnesses or present any evidence. If your divorce matter still does not settle, then the Petitioner (the first person to file for the divorce case) will call their first witness.
At the close of the Petitioner’s case, the attorney may move for a directed verdict. The judge can only grant this motion if, considering all the evidence, reasonable minds could reach only one conclusion. In considering a motion for directed verdict, the court must view the evidence in the light most favorable to the non-moving party. Depending on how many issues there are, your trial may take several days — and those days may not be consecutive. At times, there can be several weeks in between trial dates.
Once both attorneys have closed their cases, the judge will prepare a written judgment with their findings. You will have a judgment for dissolution of marriage that has determined the financial terms of your divorce and, if you have children, a judgment for the allocation of parental responsibilities and parenting time plan.
If you do not believe the judge’s rulings were legally sound based on the facts of the case, you may appeal to the Appellate Court, which we will further discuss in another blog post. If you’re embarking on a divorce trial or appeal, contact our offices for a consultation or appointment.