Evidence of character in a divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Character Evidence In An Illinois Divorce Trial

Evidence of character in a divorce

In my 15 years of experience as a divorce attorney, I’ve found that most divorces are the result of a personality disorder or addiction problem on the part of one or both of the parties. Most other married couples seem to work their problems out.

When a party to a divorce has such a glaring character flaw it is tempting to make that character flaw the star of the divorce trial. This way the judge will see who they are REALLY dealing with.

Bringing up spouse or ex-spouse’s character must be done with great particularity during an Illinois divorce trial.

What Is Character Evidence In An Illinois Divorce Trial?

In a divorce the issues at hand are the division of assets and debts, maintenance (formerly known as alimony), child support, parenting time and parental responsibilities. Nothing else will be decided. Therefore, nothing else is relevant.

Testimony and other evidence of a person’s good or bad character is not permitted under the Illinois rules of evidence or the Illinois Marriage and Dissolution of Marriage Act.

“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion” Ill. R. Evid. 404

Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors” 750 ILCS 5/503(d)

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct” 750 ILCS 5/504(a)

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)

Specific instances directly related to the issues in the divorce will be admissible if deemed relevant but other statement like “he is a narcissist” will not be admissible.

Some specific instances of bad character should also be excluded as being more prejudicial than probative.

“Trial judges must still determine whether the danger of `unfair prejudice’ to the defendant `substantially’ outweighs the probative value of the prior-act evidence.” Thompson, 294 Ill.App.3d at 1036, 229 Ill. Dec. 387, 691 N.E.2d 860 (citing People v. Illgen, 145 Ill.2d 353, 375-76, 164 Ill.Dec. 599, 583 N.E.2d 515 (1991))

“Evidence of specific prior bad acts unrelated to a material issue is prohibited.” Sharma v. Zollar, 265 Ill.App.3d 1022, 1025 n. 4, 202 Ill.Dec. 868, 638 N.E.2d 736 (1994) (citing Fugate v. Sears, Roebuck & Co., 12 Ill. App.3d 656, 299 N.E.2d 108 (1973))

“Evidence of misconduct other than that in issue is not properly admissible to establish a person’s disposition to behave in a certain way.” Plooy v. Paryani, 657 NE 2d 12 – Ill: Appellate Court, 1st Dist., 5th Div. 1995

The prohibition of character evidence stems from criminal law but the concept has been extended to civil cases like divorce.

“In criminal cases, the danger that evidence of other bad acts is likely to overpersuade the fact finder and lead to a conviction by causing the fact finder to dislike the defendant is well recognized. The same danger is present [in civil cases]” TIMOTHY WHELAN LAW ASSOCIATES v. Kruppe, 947 NE 2d 366 – Ill: Appellate Court, 2nd Dist. 2011

Character evidence is a fuzzy concept that probably is relevant in many situations. Therefore, there are many exceptions to the bar against character-like evidence in an Illinois divorce trial.

How To Get Character Evidence Admitted In An Illinois Divorce Trial.

Character evidence is evidence as to reputation. Otherwise, it’s impermissible opinion evidence.

“The general rule in Illinois is that where character evidence is proper, only reputation evidence and not evidence of personal opinion is admissible.” McCleary v. BD. OF FIRE & POLICE COM’N, 622 NE 2d 1257 – Ill: Appellate Court, 2nd Dist. 1993

A party to a divorce can be shown to be a liar by confronting them with a previous contrary or inconsistent statement. This is known as “impeachment“.

“The credibility of a witness may be attacked by any party, including the party calling the witness, except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of affirmative damage.” Ill. R. Evid. 607

A reputation for lying can also be presented to a judge in an Illinois divorce trial.

“The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness” Ill. R. Evid. 608

A reputation for truthfulness, however, can only be brought up if the witness is accused of being untruthful.

“[E]vidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Ill. R. Evid. 608

“Evidence of good reputation for truth and veracity is not admissible merely because one testified in a trial.” People v. Doll, 126 Ill. App.3d 495, 501, 81 Ill.Dec. 635, 640, 467 N.E.2d 335, 340 (1984).

There is no better evidence of bad character than a criminal conviction. Only felonies or crimes related to dishonesty may be presented to an Illinois divorce judge.

“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (2) involved dishonesty or false statement” Ill. R. Evid. 609

Furthermore, crimes older than 10 years old will no longer be considered sufficiently relevant.

“Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.” Ill. R. Evid. 609

Beyond evidence of dishonesty, the only way character or pattern of behavior is coming into evidence is to prove the mental state of a party.

“[E]vidence of prior bad acts may be admitted if relevant to prove modus operandi, intent, identity, motive, absence of mistake, or any material question other than the propensity to commit crime…Although not expressed in exactly the same terms, Illinois has long subscribed to a similar rule in civil cases. The admission of evidence of prior similar tortious or wrongful conduct to establish purpose, intent, motive, knowledge or other mental state of a party to a civil action forms an exception to the general rule which prohibits proof of one wrongful act by evidence of the commission of another such act.” Thompson v. Petit, 691 NE 2d 860 – Ill: Appellate Court, 1st Dist., 5th Div. 1998

“Showing a pattern of behavior — often referred to as a modus operandi — is a proper basis for the admissibility of such evidence only if identity is at issue.” TIMOTHY WHELAN LAW ASSOCIATES v. Kruppe, 947 NE 2d 366 – Ill: Appellate Court, 2nd Dist. 2011

Once can imagine instances when an Illinois divorce court would want to consider a party to a divorce’s purpose, intent, motive, knowledge or other mental state…but it would be rare.

Most evidence that could be objected to as “character evidence” could be admitted properly if characterized as evidence of habit.

Habit evidence is admissible to show what a person does regularly. Whereas character evidence can only be distinguished if it is a singular prior bad act. Any regular bad behavior can be admitted via evidence of habit.

“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Ill. R. Evid. 406

How To Really Introduce Character Evidence Into An Illinois Divorce Trial

Whether a spouse is a good or bad person is simply not going to matter for the financial aspects of a divorce trial. Illinois divorce judges have seen it all and will admonish the relatively-more-innocent spouse, “You’re the one that chose to marry him!”

When a court is dividing time and decision-making regarding children, the court will consider a parent’s moral compass despite the statute admonition that the “court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

If parenting time and decision making are an issue, a Guardian Ad Litem will be appointed to properly investigate the various alleged moral failings of each parent. The Guardian Ad Litem will then produce a report of recommendations to the court…which the court will likely accept entirely.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

The Guardian Ad Litem’s report and testimony can consider singular prior bad acts that would be inadmissible at trial.

“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)

People are not perfect…but some people are a lot less perfect than others. If you need to emphasize your spouse’s failings at trial contact my Chicago Family law firm to discuss all of your options.

Likewise, if you have one terrible instance in your history, you can keep that moment out of an Illinois court room by using the character objection. Contact me to discuss how to keep that evidence out of the purview of your Illinois divorce judge.