Looking into divorce in Chicago means learning about the rules that govern divorce in Chicago, Illinois.
Divorce in Chicago is governed by a series of rules: The Illinois Complied Statutes, the Illinois Supreme Court Rules, The Cook County Court Rules, case law and the standing order of whichever domestic relations judge your divorce case is assigned to.
The Illinois Compiled statutes (ILCS) is the written substantive law which determines what happens in your divorce in Chicago.
Specifically, Section 750 of the ILCS, the Illinois Marriage and Dissolution of Marriage Act outlines what happens in a divorce to the marital property, marital debts, and the time and responsibilities with the children. I go into the details of the Illinois Marriage and Dissolution of Marriage Act throughout my website so people can research what will happen and what their options are for their divorce in Chicago.
Secondary to the Illinois Marriage and Dissolution of Marriage Act is the Illinois Code of Civil Procedure located in section 735 of the Illinois Compiled Statutes. The Illinois Code of Civil Procedure determines how things will happen in your divorce in Chicago.
The Illinois Code of Civil Procedure outlines all the rules and requirement parties, lawyers and judges must follow in bringing a matter to court, presenting evidence, and asking for relief from the court. The Illinois Code of Civil Procedure applies to all matters brought to a court (this is called “litigation”) in any court in Illinois not just matters related to divorce in Chicago. Domestic relations courts are notoriously free-wheeling, especially in Cook County depending on who the judge is. Therefore, civil procedure is not strongly emphasized by divorce lawyers in Chicago.
The Illinois Code of Civil Procedure becomes important when evidence starts being presented. Typically, in a Chicago divorce there are very few facts that are contested. Everyone agrees when they were married, what their incomes are, what the assets are, etc. If there’s a disagreement as to the facts then evidence has to be presented to the court to determine what the facts are. Most divorce lawyers and judges handle issues of evidence in a very casual way but if any one party insists on following the Code of Civil Procedure, then everyone must follow it.
Additionally, 90% of the work in a divorce case in Chicago will be done outside of the courtroom through the lawyers’ negotiations. Still, a divorce lawyer in Chicago must be familiar with the substantive law, The Illinois Marriage and Dissolution of Marriage Act, and the procedural law, the Illinois Code of Civil Procedure, in order to effectively negotiate a final divorce settlement in favor of his or her client. A divorce lawyer must always be prepared to say, “If you don’t agree. We’ll go to court on this petition and will likely get this result from the judge based on these laws.” Even more important, a divorce lawyer needs to know the temperament and preferences of the judge the case is assigned to when estimating his or her clients’ options through litigation.
I, personally, have practiced family law in Chicago, Illinois for over twelve years with a high-volume case load. I have been before every judge in the Daley Center numerous times and have a familiarity with their personal procedures and temperament when presented with a variety of different scenarios of divorce in Chicago. For this reason, I will cater my case to the judge’s procedure and preferences instead of blindly following the law and procedure the same way in every case.
Federal Law And Divorce
Divorce in Chicago is governed by state law. The federal law can only modify the state law if that state law is held to violate a fundamental right. This has happened several times before as Federal courts declared laws against interracial and same-sex marriage unconstitutional.
Outside of fundamental constitutional issues, divorce in Chicago is only affected by federal law in rare situations such as if one of the parties is in bankruptcy proceedings during the divorce proceedings. Federal law almost always trumps state law.
Illinois Supreme Court Rules
Beyond the substantive law and the procedural law are the Illinois Supreme Court Rules. The Illinois Supreme Court is empowered to create rules for conducting litigation in Illinois when the rules of civil procedure do not suffice and do not contradict the Illinois Supreme Court Rules. These rules largely involve schedules for exchanging discovery, details on presenting evidence and other more arcane functions of the law.
The only rule you and your Chicago divorce lawyer absolutely need to know is rule 201(k) which requires a letter, phone call or meeting happen regarding outstanding discovery before a motion to compel the production of that discovery is filed. This keeps the byzantine discovery process out of expensive court appearances (so long as the lawyers are still cooperating with each other).
A lawyer can rely on the Illinois Supreme Court rules but will find that these rules are often perceived as being discretionary by the judges. While the Illinois Supreme Court rules are discretionary, they are extremely persuasive as the goal of the rules is to make litigation move along quickly and fairly which is almost always the same goal the judge has with his or her cases. For a divorce in Chicago, most lawyers and judges acknowledge that there are few final orders that can’t be undone if the situation changes, so the observance of the court rules would not be described as strict.
More tellingly, in my 12 years of reading every decision issued by the Illinois courts relating to domestic relations, I have never read a court decision that was based on an Illinois Supreme Court Rule. If you were a judge, would you always follow a rule where there was no chance of you being appealed?
Cook County Court Rules
After the Illinois Supreme Court rules the Cook County Court Rules apply. These are rules set by the Chief judge of Cook County. These rules cater to the particular issues that Cook County courts face that are different than other counties. Cook County is a magnitude larger and more diverse than other Illinois counties. Some Illinois counties only have a few thousand residents while the Cook County courts are responsible for administering a justice system for over five million people. For this reason, Cook County courts have a very stratified division and hierarchy. Divorce in Chicago is subject to Part 13 of the Cook County Court Rules which define, organize and systematize all domestic relations proceedings.
The Cook County Court Rules have an extremely practical bent and are usually observed by judges in Chicago. After all, their boss, the Chief Judge, wrote the Cook County Court Rules.
I would strongly advise anyone in the process of getting a divorce in Chicago to read through Part 13 of the Cook County Court Rules. The Cook County Court Rules are written succinctly and in plain English. Fifteen minutes spent reading the Cook County Court Rules will give you a broad overview of how a divorce in Chicago works.
The Cook County Court Rules are changing rapidly for domestic relations cases as the concept of “team” judges is being retired. Now judges are expected to handle a case from start to finish without a complicated “team” system.
The Judge’s Standing Order
“Original petitions shall be randomly assigned to either a team of judges or to an individual calendar judge.” Cook County Court Rule 13.3(c)
Once you’re assigned to a judge it’s called being assigned to a “calendar.” This is because domestic relations judges are often swapped in and out of calendars. For whatever reason, many domestic relations judges do not stay in domestic relations for very long. For a divorce in Chicago, you may have one judge hear your case for a year only to find that the judge has moved to another division and a brand new judge will finalize your case.
The judge for that calendar will often have a standing order. That judge’s standing order will be posted on their respective webpage through the county courts.
As of today, there are still some “team” calendars where multiple judges handle matters as a team. This makes the concept of a standing order very difficult. Whose standing order to you prepare for when you are assigned to a team calendar?
Cook county has 45 judges assigned to the domestic relations division. Some judges have standing orders. Some judges do not. I leave it to you to research your respective judge’s standing order. If your case is assigned for trial, the first thing you should do is read the standing order to begin preparation for that trial.
When there is a disagreement about any of the above rules, one of the parties can appeal the case, either during the case or within 30 days of the entry of the final judgment. For a divorce in Chicago, that appeal goes to the Illinois 1st district appeals court. The appeals court will look at the record of the case, and determine if there is, in fact, a plausible disagreement as to what the rule is or how the rule is to be applied. If the appeals court believes it would be warranted the appeals court will carefully review the court record, take arguments from the lawyers and issue an opinion as to what the appeals court finds the rule to be and how the rule should be applied.
This written opinion is called case law and becomes a rule of its own. This is known as “case law.” Case law from the 1st district, Cook County, becomes binding on all of the courts within Cook County. Case law from another appellate district becomes persuading and but not binding for Cook County courts.
If two appellate districts disagree on a rule or its application, the Illinois Supreme Court will hear the case and issue its own opinion which becomes binding on the entire state of Illinois.
What If Someone Breaks The Rules?
You can bring the issues of the broken rule to the judge asking that the party who broke the rule be held in contempt of court for breaking that rule. This is commonly known as a “Petition for Rule To Show Cause.” The court will typically order the rule breaker to follow the rule, pay for all attorneys’ fees incurred in enforcing the rule and may even remand the rule breaker to jail. The court can use any kind of creativity to enforce or punish.
More typically, a Chicago divorce lawyer will bring up the failure to follow the rules to the judge on a status court date so the judge can politely remind the rule breaker of the judge’s contempt power during divorces in Chicago.
What Your Lawyer Should Know About These Rules
In short, everything. A divorce in Chicago needs to be done properly. It’s like your taxes. It has to be done and it has to be done properly or it will cost you, either up front or down the road.
The Illinois Marriage and Dissolution of Marriage Act and the Cook County Rules for the Domestic Relations Division will cover 95% of situations that can arise in a Chicago divorce. Both of these sets of rules are no more than 50 pages long put together. It is not too much to ask that your Chicago divorce lawyer have these rules largely committed to memory.
The Code of Civil Procedure, the Illinois Supreme Court Rules and Domestic Relations case law are so voluminous that I wouldn’t expect every divorce lawyer to know them completely. I would hope that most Chicago divorce lawyers would be at least comfortable with these sets of rules, however.
Of course, experience is always the best teacher and the best experience for a lawyer is a trial. A trial is the rules in action.
Prenuptial Agreements and “The Rules”
If you and your spouse enter into a prenuptial agreement or have entered into a prenuptial agreement, it is possible that none of the above rules will apply. Instead the courts will follow the rules laid out in your prenuptial agreement.
A detailed prenuptial agreement will lay out the division of debts and assets, possibly the maintenance but never the child support and child custody issues.
A prenuptial agreement may even lay out the manner in which assets and liabilities will be divided if the division is not already made explicitly. You may very well have a divorce in Chicago but a prenuptial agreement that says, “The division of assets will proceed under Ohio law,” meaning that the Chicago divorce court now has to try to apply Ohio laws as it divides marital assets.
Because of the possibility of vagueness of a prenuptial agreement, Chicago divorce courts are often apt to declare a prenuptial agreement invalid. This causes the prenuptial agreements rules to be substituted for the back up statutory and local rules I have laid out above.
Contact my Chicago law office and schedule a free consultation if you’d like to learn more about divorce in Chicago.