The habit evidence rule in Illinois

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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Habit In An Illinois Divorce Hearing Or Trial

The habit evidence rule in Illinois

A divorce trial doesn’t unwind a single incident the way a personal injury or criminal case does. Rather, a divorce takes the totality of a relationship and creates binding orders based on the cumulative past behaviors of both spouses.

How can someone testify to everything they did in a relationship that spanned years?

Simple. A party to a divorce can testify to their usual behavior or their spouse’s typical actions as a whole by testify to their own or their spouse’s habits.

Habit Evidence In Illinois

“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

To the lay person, this seems obvious. Why couldn’t you testify to regular activity?

The rules of evidence require that witnesses only testify to that which they have personal knowledge.

“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

Testifying to repeated activity, without Illinois Rule of Evidence 406, would require the witness to have seen each instance of the repeated activity.

“The most common means of satisfying [the] requirement [of personal knowledge] is by the informant’s declaration that he is revealing personal knowledge gathered through some physical sensory faculty such as that of sight, smell or sound.” People v. Gates, 423 NE 2d 887 – Ill: Supreme Court 1981

“Rule 406 permits habit or custom evidence even if eyewitness testimony is available.” Alvarado v. Goepp, 663 NE 2d 63 – Ill: Appellate Court, 1st Dist., 1st Div. 1996

Almost everything testified to in an Illinois divorce trial except singular instances (like domestic violence) will be testimony about repeated instances…which are evidence of habit and character.

“Rule 406 establishes that habit testimony is always admissible for the purpose of proving the conduct of a person” Taruc v. State Farm Mut. Auto. Ins. Co., 578 NE 2d 134 – Ill: Appellate Court, 1st Dist., 4th Div. 1991

“The conduct of a person?” That’s everything testified to that isn’t individually itemized by date and time.

Foundational Requirements For Habit Evidence In Illinois

Once the testimony is identified as habit testimony, there are strict rules about how that testimony must be introduced. Preliminary questions that allow a subsequent question to make sense in context is called “foundation.”

“[H]abit and custom evidence may be admitted provided that a proper foundation has been established” People v. Keller, 641 NE 2d 891 – Ill: Appellate Court, 1st Dist., 6th Div. 1994

“The party seeking admission of the habit evidence must first establish a proper foundation to show conduct that becomes semiautomatic, invariably regular and not merely a tendency to act in a given manner.” Hajian v. Holy Family Hosp., 652 NE 2d 1132 – Ill: Appellate Court, 1st Dist., 3rd Div. 1995

“It is the notion of virtually invariable regularity that gives habit its probative force.” Alvarado v. Goepp, 663 NE 2d 63 – Ill: Appellate Court, 1st Dist., 1st Div. 1996 (Citations Omitted)

So, if almost everything in an Illinois divorce is describing a habit…and habit evidence requires strict foundation to be entered…you can keep most of your opponent’s evidence out by objecting to foundation as to the evidence being characterized as a habit.

Shouting “Objection. Witness is testifying as to habit without proper foundation” will likely stymie your opposing counsel.

Remind the Illinois divorce judge that he or she can consider each individual instance the witness describes which the witness personally observed but the court may not consider it as a pattern of continual behavior…unless the proper foundation has been established.

Habit Testimony In An Illinois Divorce

In an Illinois divorce, habit testimony can describe a parent’s conduct towards their children, their earning capacity, and their spending habits.

If there’s a question as to parenting time or parental responsibilities, those issues will likely be investigated by a Guardian Ad Litem, a third attorney who represents the children and their best interests.

“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 will be full allegations of habitual, regular behavior.

In lieu of insisting on foundation, cross examination will be necessary to show that the guardian ad litem’s testimony via report of habitual, regular behavior was not based on sufficient evidence to confirm that the behavior was in fact sufficiently regular to be taken as invariable.

“The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.” 750 ILCS 5/506

A party’s earning habits (how often they go to work, how hard they work) can be introduced through habit testimony. This helps establish a party’s earnings when they are paid in cash or there is not sufficient documentation of their earnings.

A party’s spending habits can also be introduced via habit testimony in lieu of drowning the court in receipts.

When the issue is inappropriate spending, also known as dissipation of assets, then habit testimony becomes a moot point. No habit testimony is needed from the spouse accusing the other spouse of dissipation of assets. The accusation must merely be made and then the alleged dissipator must prove that they spent the money on a marriage related purpose.

“The general principle is that a person charged with the dissipation is under an obligation to establish by clear and specific evidence how the funds were spent.”In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987

“General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” Id.

Habit testimony is going to be “general and vague” and, therefore, not sufficient to prove that the money was spent appropriately.

Telling your story in a divorce is important. You can show you are consistently one way and that your spouse is consistently another through the appropriate use of habit testimony. Additionally, you can keep your spouse’s story from the court via enforcing the foundational requirements for habit testimony.

To learn more about how to keep your story in front of the court and your ex’s story out of court, contact my Chicago, family law firm to speak with an experienced Chicago divorce attorney.