Posted on March 31, 2024

Circumstantial Evidence In An Illinois Divorce Trial

Trials and hearings do not happen a lot in an Illinois divorce proceeding. The factual issues in a divorce are, often, not disputed enough to warrant a hearing or trial. The parties typically agree as to what they own, what they earn and how they spend time with their children. An Illinois divorce court need only apply those agreed facts to the law to provide proposed recommendations…which the parties usually, again, agree to.

When parties do not agree to the facts (or the legal conclusions) they can request an evidentiary hearing to formally present the facts and arguments to an Illinois divorce judge.

“An evidentiary hearing, including the right to present witnesses and engage in cross-examination, must be given if properly requested in domestic relations cases.” In re Marriage of Giammerino, 81 Ill. App. 3d 998, 999 (1980)

In a hearing, the Rules of Evidence determine what you and your witnesses can tell the judge.

“[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. Preamble

Witnesses are only allowed to testify to what they personally observed, heard or sensed.

“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Ill. R. Evid. 602

“[T]he testimony of a lay witness must be confined to statements of fact of which the witness has personal knowledge.” People v. Brown, 200 Ill.App.3d 566, 578, 146 Ill.Dec. 346, 558 N.E.2d 309, 316 (1990).

Divorces, however, are full of secrets. Those secrets are rarely seen, heard or sensed by the witness testifying. Witnesses may, instead, try to testify about what they assume to be true.

For example, a witness may testify that “I saw him excuse himself go to the bank every day. He always had a lump in his pocket after each trip to the bank. I assume he was withdrawing money.”

In this scenario, the witness has no actual knowledge that the man ever actually withdrew money from the bank. It is a pure assumption.

A testified assumption will result in your opponent objecting “assumes facts not already admitted into evidence.

“Assumptions and statements of fact not based upon evidence in the case may not properly be argued to the [finder of fact]” The People v. Beier, 194 NE 2d 280 – Ill: Supreme Court 1963

If the objection is sustained, your proposed evidence never gets considered by the court.

“A trial court, sitting as the trier of fact, may only consider knowledge acquired through the introduction of evidence or through judicial notice” People v. Barham, 788 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2003

These educated guesses can come into evidence if they are properly labelled as “circumstantial evidence.”

Circumstantial evidence is “evidence based on inference and not on personal knowledge or observation” Black’s Law Dictionary (11th ed. 2019)

In an Illinois divorce court “[a] fact may be proved by circumstantial evidence.” Walsh v. Dream Builders, Inc., 129 Ill. App. 2d 280, 287 (1970)

When a fact “is shown by circumstantial evidence, [that] evidence must be clear and convincing.” McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 134 (1999)

“[C]lear and convincing evidence…is defined as a degree of proof that leaves no doubt in the mind of the fact finder as to the veracity of the proposition in question.” In re Torry G., 2014 IL App (1st) 130709, ¶ 31.

“[A] fact cannot be established through circumstantial evidence unless the circumstances are so related to each other that it is the only probable, and not merely possible, conclusion that may be drawn. That is, where the proven facts demonstrate that the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion that [it] exists is a matter of speculation, surmise, and conjecture, and the trier of fact cannot be permitted to make that inference.” Argueta v. Krivickas, 2011 IL App (1st) 102166, ¶ 10 (citations omitted)

In an Illinois divorce, the finder of fact is the judge and the judge is not an idiot. A judge is able to connect the dots and the judge should not mind if you help them connect those dots via circumstantial evidence.

Some facts simply “must be established from circumstantial evidence and inferences drawn from evidence, coupled with common-sense knowledge of the behavior of persons in similar circumstances.” McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 134 (1999).

While a witness testifying to a conclusion should be objected to, the counterargument is to point out that allowing circumstantial evidence is within the discretion of the court.

Circumstantial evidence opens A LOT of doors for the clever litigator. In fact, it allows lay witnesses to offer expert testimony…which is normally forbidden.

The counter-argument to circumstantial evidence is that circumstantial evidence is allowed if it is probable…but not not allowed if it is equally improbable.

“Moreover, when the established facts demonstrate [that] the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion is a matter of speculation, conjecture, and guess, and the inference is not permissible.” Banks v. City of Rockford, 2023 IL App (4th) 221111, ¶ 29, 227 N.E.3d 816

And how would we even know if the circumstantial evidence is more probable than not…unless we bring in the evidence properly?

If you want to get your evidence admitted in an Illinois divorce court and even testify to conclusions based on that evidence, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer.

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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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