Closing Arguments In An Illinois Divorce

A closing argument is “[i]n a trial, a lawyer’s final statement to the judge or jury before deliberation begins in which the lawyer request the judge or jury to consider the evidence and apply the law in her or her client’s favor” Black’s Law Dictionary (11th ed. 2019)

In an Illinois divorce hearing or trial there is no jury. “There shall be no trial by jury” 50 ILCS 5/103.

In an Illinois divorce, the closing argument is solely for an audience of one: the judge.

The closing argument should apply the evidence presented to the law and present the judge with an obvious and fair conclusion based on the evidence and the law.

The judge is not dumb. The judge already heard the evidence. The judge knows the law. The judge has already come to an approximate conclusion. The judge may have even told you what conclusion they are considering.

In light of the fact that the judge probably has already made up their mind, you want to be sure that your closing argument is as obvious as possible based on the evidence you presented.

Ironically, when preparing for a divorce hearing or trial, the first thing you should do is prepare the last thing that happens in the case: the closing argument.

Using Your Closing Argument To Organize Your Entire Trial

For the person who is going to give a closing argument, the closing argument’s first draft should be written like a wish list. Don’t worry about the “argument” part. Just focus on the evidence you hope your argument might apply to. Under Illinois family law this is very easy because the statute is so clear.

Use the below bullet points as a checklist to determine what is the evidence that you need to present to make a closing argument. I’ve divided the checklist into sections because some subject matters may not be relevant to your trial.

Note: After every item of evidence you hope to present, you should also present some corroborating evidence verifying that evidence. That’s why I remind you “How do we know that?” after every statutory factor (more on this later).

Division of Assets

• What property is non-marital? 750 ILCS 5/504(a)
  • How do we know that?
• What property is marital? 750 ILCS 5/504(b),(c)
  • How do we know that?
• What contributions did each party make to the marital property? 750 ILCS 5/504(d)(1)
  • How do we know that?
• What dissipations did each party make against the marital estate? 750 ILCS 5/504(d)(2)
  • How do we know that?
• What is each allocated asset worth? 750 ILCS 5/508(f),(k)
  • How do we know that?
• Should any asset be put into a trust for the benefit of the children? 750 ILCS 5/508(g)
  • How do we know that?
• Does any property need to be sold to effect a fair distribution? 750 ILCS 5/508(i)
  • How do we know that?

That’s it! 7 questions and 7 sub-questions should frame the entire case as to division of assets. Believe it or not, the other financial issues in a divorce are even easier?

Maintenance (formerly known as alimony)

• What does one party earn? 750 ILCS 5/503(b-2) tells us to look at 750 ILCS 5/501(a)(3), 750 ILCS 5/501(a)(3.1)
  • How do we know that?
• What does the other party earn? 750 ILCS 5/503(b-2) tells us to look at 750 ILCS 5/501(a)(3), 750 ILCS 5/501(a)(3.1)
  • How do we know that?
• What should the parties be earning? 750 ILCS 5/503(b-2) tells us to look at 750 ILCS 5/501(a)(3.2a),(3.2b)
  • How do we know that?
• Is there any basis to deviate from maintenance guidelines? (note these are rare and one party will inevitably not want to consider them as they want the support to follow guidelines) 750 ILCS 5/504(b)
  • Is the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(1)
    • How do we know that?
  • Is the needs of each party a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(2)
    • How do we know that?
  • Is the realistic present and future earning capacity of each party a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(3)
    • How do we know that?
  • Is there any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage that would be a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(4)
    • How do we know that?
  • Is there any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought that would a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(5)
    • How do we know that?
  • What is the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment and is that period of time a basis to deviate from guidelines maintenance duration? 750 ILCS 5/504(b)(6)
    • How do we know that?
  • What is the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment and is that effect a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(6.1)
    • How do we know that?
  • What was the standard of living established during the marriage and is that standard of living a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(7)
    • How do we know that?
  • What was the duration of the marriage and is that duration a basis for a deviation from guidelines maintenance in amount or duration? 750 ILCS 5/504(b)(8)
    • How do we know that?
  • What is the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties and are those factors a basis for a deviation from guidelines maintenance amount or duration? 750 ILCS 5/504(b)(9)
    • How do we know that?
  • What are all sources of public and private income including, without limitation, disability and retirement income and are those sources of income a basis for a deviation from guidelines maintenance amount or duration? 750 ILCS 5/504(b)(10)
    • How do we know that?
  • What are the tax consequences to each party from all aspects of the divorce and are those tax consequences a basis for deviation from guidelines maintenance? 750 ILCS 5/504(b)(11)
    • How do we know that?
  • What were the contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse and are those contributions a basis for a deviation from guidelines maintenance? 750 ILCS 5/504(b)(12)
    • How do we know that?
  • What if any valid agreement of the parties have regarding maintenance? 750 ILCS 5/504(b)(13)
    • How do we know that?
  • Is there any other factor that the court could expressly finds to be just and equitable in order to deviate from guidelines maintenance amount or duration? 750 ILCS 5/504(b)(14)
    • How do we know that?

If the parties have children, there are some additional proofs that need to be considered and possibly presented.

Child Support

• What does one party earn? 750 ILCS 5/501(a)(3), 750 ILCS 5/501(a)(3.1)
  • How do we know that?
• What does the other party earn? 750 ILCS 5/501(a)(3), 750 ILCS 5/501(a)(3.1)
  • How do we know that?
• What should the parties be earning? 750 ILCS 5/501(a)(3.2a),(3.2b)
  • How do we know that?
• Does the children’s schedule affect child support? 750 ILCS 5/501(a)(3.9)
  • How do we know that
• What is the guidelines support? 750 ILCS 5/501(a)(3)
  • How do we know that (spoiler: the answer is always Family Law Software)
• Is there any basis to deviate from guidelines child support? 750 ILCS 5/501(b), 750 ILCS 5/501(a)(3.4)
• Is any parent paying for insurance, extracurriculars or other child expenses that should increase or decrease their child support? 750 ILCS 5/501(3.6),(3.7),(4)
  • How do we know that?
• Should either parent get a life insurance policy to guarantee their child support? 750 ILCS 5/504(a-3)
  • How do we know that?

The issues to consider for parenting time and parenting responsibilities are practically the same so treat them as such.

Parenting Time And Parental Responsibilities

The below evidence can be used to argue for Parenting Time AND Parental Responsibilities.

• What are the wishes of the child. 750 ILCS 5/602.5(c)(1) and 750 ILCS 5/602.7(b)(2)
  • How do we know that?
• What is the child’s adjustment to his or her home. 750 ILCS 5/602.5(c)(2) and 750 ILCS 5/602.7(b)(6)
  • How do we know that?
• What is the mental and physical health of all individuals involved. 750 ILCS 5/602.5(c)(3) and 750 ILCS 5/602.7(b)(7)
  • How do we know that?
• Should there be a restriction on parenting time and/or decision-making is appropriate under Section 603.10? 750 ILCS 5/602.5(c)(6) and 750 ILCS 5/602.7(b)(10)
  • Did the parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development? 750 ILCS 5/603.10(a)
    • How do we know that?
• What are the wishes of the parents. 750 ILCS 5/602.5(c)(7) and 750 ILCS 5/602.7(b)(1)
  • How do we know that?
• What are the child’s needs. 750 ILCS 5/602.5(c)(8) and 750 ILCS 5/602.7(b)(8)
  • How do we know that?
• What is the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement. 750 ILCS 5/602.5(c)(9) and 750 ILCS 5/602.7(b)(9)
  • How do we know that?
• What is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. 750 ILCS 5/602.5(c)(11) and 750 ILCS 5/602.7(b)(13)
  • How do we know that?
• Is there any physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household. 750 ILCS 5/602.5(c)(12) and 750 ILCS 5/602.7(b)(11)
  • How do we know that?
• Has there been an occurrence of abuse against the child or other member of the child’s household. 750 ILCS 5/602.5(c)(13) and 750 ILCS 5/602.7(b)(14)
  • How do we know that?
• Is one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated. 750 ILCS 5/602.5(c)(14) and 750 ILCS 5/602.7(b)(15)
  • How do we know that?
• Is there any other factor the court expressly finds to be relevant. 750 ILCS 5/602.5(c)(15) and 750 ILCS 5/602.7(b)(17
  • How do we know that?

Some factors apply exclusively to Parental Responsibilities or Parenting Time.

Parental Responsibilities

• What is the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making? 750 ILCS 5/602.5(c)(4)
  • How do we know that?
• What is the level of each parent’s participation in past significant decision-making with respect to the child? 750 ILCS 5/602.5(c)(5)
  • How do we know that?
• What are any prior agreement or course of conduct between the parents relating to decision-making with respect to the child? 750 ILCS 5/602.5(c)(6)
  • How do we know that?

Parenting Time

• What was the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth? 750 ILCS 5/602.7(b)(3)
  • How do we know that?
• Was there any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child? 750 ILCS 5/602.7(b)(4)
  • How do we know that?
• What is the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests? 750 ILCS 5/602.7(b)(5)
  • How do we know that?
• What is the willingness and ability of each parent to place the needs of the child ahead of his or her own needs? 750 ILCS 5/602.7(b)(12)
  • How do we know that?
• What are the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed? 750 ILCS 602.7(b)(16)
  • How do we know that?

That’s it! That’s what a closing argument should be: a run-down of the evidence you presented or hoped to present.

This why a closing argument is a great way to organize what evidence you need to present to get the result you need. Trial doesn’t seem so intimidating once you realize there are less than 46 total fundamental pieces of evidence that you need to get into the record.

A reminder that this is not a homework project where you have to turn in a bunch of documents for the court to ‘grade.’ The evidence you need and the corroboration can be just testimony from the parties.

“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992

If your witness testifies to a factor and the other side does not have testimony counter to that factor, then the court must rule in your favor on that factor.

“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

So, it is more important to cover every factor than it is to be sure that your evidence is overwhelmingly persuasive.

As to ensuring that competing evidence is persuasive, that’s why I wrote “How do you know that?” over 40 times. These factors seem like legal conclusions but they are not. They are calls for evidence. You must present evidence to establish the factor in your favor.

You cannot just say “Dad makes $ 100,000 a year.” You must say, “Dad makes $ 100,000 a year and we know that because he testified to that amount and he submitted a financial affidavit sworn under oath with that amount as his income accompanied by tax returns, W2s and bank statements which corroborated that income.”

Do not try to impress the judge with how clever you are by offering circumstantial evidence. Ex: “Dad must make more because he lives downtown and goes out 5 nights a week.” This is not an Encyclopedia Brown mystery! Just offer a party’s testimony as to a factor, offer a document (if you have one) to verify that testimony, and/or offer a third party’s testimony to verify your point. Let the judge make the inferences. People only like inferences if they think they came up with them by themselves.

Your actual closing argument, when delivered should sound like you are reporting to your boss about all the great evidence you put in. If you got the evidence in, you should be proud!

Now is your opportunity to be clever and point out how the evidence you entered should be applied to the statutory factor in favor of your position. The judge will have already done this while you were originally entering the evidence but you have every right to underscore your evidentiary success by reminding the judge how important it is for your case.

In conclusion, there is really very little “argument” in a closing argument. It is really an opportunity to remind the court what a good job you did at presenting your evidence and excluding the opponent’s evidence.

How Does This Closing-Argument-Organizing-For-Trial Help Me Prepare To Confront The Opposing Side?

The closing argument as a checklist for trial preparation can also be a great checklist for the deposition of any witnesses disclosed by the other side. You ask the other side the same questions on the checklist so you can know their answer in advance and be sure that your evidence is more persuasive and that you’re able to effectively cross-examine that witness when they’re putting evidence on the record that you disagree with or hurts your case.

Okay, enough with Russell Knight’s global theory of how to prepare for a trial using a closing argument as a checklist for trial preparation.

What Is Allowed In A Closing Argument In An Illinois Divorce?

Closing arguments are completely optional in an Illinois divorce. The judge may not even let you make a closing argument.

Closing arguments are not a right in a civil trial. “Illinois follows those jurisdictions which hold that oral argument in a civil proceeding tried before the court without a jury, is a privilege, not a right, which is accorded to the parties by the court in its discretion… court did not abuse its discretion in refusing to permit plaintiff’s attorney to make a closing argument.” Korbelik v. Staschke, 596 NE 2d 805 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

Again, if you put your evidence on the record properly…you probably do not need a closing argument.

If a closing argument is allowed, you can pretty much say whatever you want. You cannot prejudice a judge via a closing argument.

“In making closing arguments, attorneys are generally given broad latitude. The trial court has discretion in the scope of a closing argument and its judgment as to the propriety of comments therein will not be reversed unless they were of such character that they prevented the opposing party from receiving a fair trial.” Weisman v. SCHILLER, DUCANTO AND FLECK, 856 NE 2d 1124 – Ill: Appellate Court, 1st Dist., 4th Div. 2006 (citations omitted)

Part of why you cannot prejudice a judge via closing arguments is that closing arguments are not evidence. In re Marriage of Jacobson, 411 NE 2d 947 – Ill: Appellate Court, 1st Dist. 1980

Closing arguments are about discussing the evidence that was presented and presenting theories (no matter how insane) of how the court should rule based on that evidence.

“[A]ttorneys are allowed broad latitude in drawing reasonable inferences and conclusions from the evidence” Velarde v. Illinois Cent. RR Co., 820 NE 2d 37 – Ill: Appellate Court, 1st Dist., 1st Div. 2004

You should listen carefully to your opponent’s closing argument. In an attempt to be magnanimous, your opponent may concede some of the points you made. If that does happen, politely remind the court and thank the opposing counsel for making a judicial admission in your favor.

“[S]tatements made by an attorney in closing argument may be the basis from which a trial court finds a judicial admission.”  Lowe v. Kang, 521 NE 2d 1245 – Ill: Appellate Court, 2nd Dist. 1988

The 2^nd habit of the “Seven Habits Of Highly Effective People” is to start with the end in mind. Your closing argument is the end result of your trial but it should be the start of your trial preparation.

If you think you will go to trial in an Illinois divorce, contact my office to schedule a free consultation with an experienced Illinois family law attorney.