Preparing for an Illinois divorce trial

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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How To Prepare For A Divorce Trial In Illinois

Preparing for an Illinois divorce trial

Most divorce cases in Illinois do not go to trial. Most divorce cases are simply an exchange of minimal discovery and then negotiations based on a mutual feeling for what is fair or a mistaken understanding that the law requires a 50/50 division of assets and mandatory implementation of guidelines support.

If you want more than the minimum expectation in your Illinois divorce case, you must be prepared to go to trial.

If you are not prepared to take your divorce case to trial, you will have zero leverage in pretrial negotiations.

Preparation for trial relieves the anxiety of trial and explicitly shows the opposing side that the alternative to your offer is definitely going to be an effective, well-executed, expensive trial that will doubtlessly result in your winning on several points.

There are an infinite number of ways to conduct an Illinois Divorce Trial but only one way to prepare for a divorce trial if you expect to have the maximum advantage at trial and the negotiations which precede trial.

Request A Trial Date And A Pretrial Date For Your Illinois Divorce

At any time in the Illinois divorce process you can request a trial. If there are children involved in your divorce, you can demand a trial occur within 18 months of the filing of your divorce.

“All allocation of parental responsibilities proceedings under this rule in the trial court shall be resolved within 18 months from the date of service of the petition or complaint to final order. In the event this time limit is not met, the trial court shall make written findings as to the reason(s) for the delay.” Illinois Supreme Court Rule 922

Each Illinois county’s court system may have similar deadlines for when domestic relations cases must be resolved. Cite the rule and get your case scheduled for trial.

Demanding trial by the proscribed deadlines shows the court that you are both personally ready for trial and ready to hold the court accountable to the court’s own rules.

The opposing side may object and claim that the case is not be ready for trial. Usually, the reason bases for not scheduling trial immediately is that discovery is still outstanding. That is fine. Trial is not tomorrow. There is plenty of time to finish discovery as your trial date will likely be months from now.

Deadlines can be set for the exchange of discovery, the taking of depositions, the filing of briefs, the exchange of proposed exhibits and witness lists, etc.

Request that your trial be in person. Zoom court is not conducive to effective trials. You can command a courtroom but you cannot command a Zoom screen. Nor can you properly object or present exhibits. If you’re doing a trial…do it right. Do it in person.

When you have a trial date, schedule a court reporter for that date and court room. Without a court reporter, the record will not be preserved. Ask the opposing counsel if they would like to share the cost of the court reporter.

If a deadline passes and discovery or any other appropriate pretrial matter is not completed, either side will be well within their rights to file a motion to continue the trial.

Every trial date should be preceded by a pretrial date whereby the parties can summarize their proposed evidence and arguments for multiple reasons: 1) to implant the theme of your case in the judge’s brain, 2) to get feedback on the strengths and weaknesses of each party’s case (at least in the judge’s eyes) and 3) to resolve outstanding issues by agreement.

Finally, now that you have a trial date, a pretrial date and discovery deadlines, get a copy of the judge’s standing order. Be sure that you are in compliance with the standing order throughout the preparation for the divorce trial.

Pick A Theme For Your Divorce Trial

Themes are how people mentally frame court cases. If you do not pick a theme for your divorce case, someone else will.

The theme does not need to be perfect or even good. The theme just needs to be remotely positive and not your opponent’s theme.

A good theme describes a character in the divorce and an issue. Examples are: “Superdad inherited his mom’s house,” or “Mom smokes pot and won’t get a job.”

Call your case this theme and refer to the case as that theme in every instance that the case is discussed with the judge, your client, potential witnesses and your opposing counsel.

Once you have a theme, you will subconsciously weave the theme into every aspect of your divorce trial. That weaving will subconsciously implant the theme into everyone’s brain who observes the trial (especially, hopefully, the judge).

Pick a theme and start referring to the case by the theme…it will catch on with everyone (whether they like it or not)

I had a client once who couldn’t appear in court because he had to go to a conference in the redwood forests of California. The judge joked to herself, “He needs to commune with the owls.”

For the next year, the judge referred to the case as “the owl case.” There was never one owl in the case…but that was the theme because I had not implanted an alternative theme in the judge’s head.

Write A Closing Argument For Your Illinois Divorce Trial

Your closing statement is a summary of what occurred in trial. Take 30 minutes and write the closing argument now.

“I don’t know what I think until I write it down.” – Joan Didion.

Preparing for a divorce trial by writing the closing implies that we are working backwards. We are even going to write the closing argument backwards!

Start the closing by writing what your client wants at the end of the trial: custody, maintenance, allocation of specific assets, etc.

Above what your client wants, cut and paste the applicable law for each request. 90% of the law will be in the Illinois Marriage and Dissolution of Marriage Act. The other 10% will be in case law that you can find by simply searching for the term in Google Scholar.

Above the applicable law, write the facts that you wish you could prove so you could apply the law you cut and pasted and get your client what they want.

Now that you have a written closing argument (even if the written closing argument is premature and terrible at this stage), you have a shopping list of evidence you need to gather. I will refer to this as the “wishlist of facts” 

Getting Evidence For Your Illinois Divorce Trial

Neither you nor the opposing party want to prepare for trial. Most of the evidence in a trial is necessary…but pointless. Do yourself, the opposing counsel and the judge a favor: prepare stipulations to every possible fact that could help your case.

You already have your wishlist of facts. Write them all down as a proposed stipulation. Send the proposed stipulation to the opposing counsel with a cover letter asking them to send you an equally expansive list of proposed stipulated facts and that their objections to any of your proposed stipulations is welcome and accepted as zealous advocacy.

Most of your proposed stipulations will be objected to, but a lot of the items on your wishlist of facts will be agreed to…and your trial preparation just got that much easier. You will not need to prove anything that you have stipulated to.

File the agreed stipulations the minute you have both attorneys’ signatures. This way, neither party can take back what they have stipulated to.

Most of the evidence you will need in an Illinois divorce trial is going to be via testimony of the parties and other witnesses.  

You have your wishlist of facts that you would love a judge to know. Who can possibly testify to those facts? Beside each fact, write down someone’s name who could possibly testify to that fact or opinion.

All the names you have written down next to your wishlist of facts are your witnesses. 

If the witness is your client, a client’s family member or friend, or a controlled witness, ask them in writing (email) if they could testify to the facts you expect them to.

God forbid, if these witnesses agree to testify to facts and then recant on the stand, you can impeach them with their email response to you.

The people who can testify to the facts you need but will not politely communicate with you (opposing party, their friends, family and controlled witnesses) must be deposed.

A deposition will allow you to test all of your questions out in advance of trial to see if the facts you want to enter into the record, in fact, can be entered on the record.

After emails and deposition transcripts confirm the facts you want to put on the record you need to corroborate those facts with exhibits.

Exhibits should not be seen as a smoking gun that will definitely prove something is true or false. Exhibits cannot stand alone with any emotional weight necessary to sway a judge’s mind. Exhibits should be seen as corroboration of the witness’s testimony.

A witness should say “It’s very expensive to live in Highland Park,” and then corroborate that with a mortgage statement.

A witness should say, “He yelled at me so I called the police,” and then corroborate that statement with a police report.

The accumulation of exhibits into the record makes it impossible for a judge to rule against you without that ruling being “against the manifest weight of the evidence” which is one of the three bases for an appeal in Illinois.

Gather the exhibits via notices to produce to the opposing side or subpoenas to third parties. You should have done this a long time ago, but it’s never too late to issue discovery so long as discovery has not closed yet.

Getting exhibits into evidence is easy…if you ask the opposing side in advance.

Submit a Request To Admit Genuineness of whatever exhibit you care to admit. If the opposing side does not reasonably agree, prepare to lay foundation and authenticate those exhibits and file a rule 137 sanctions motion based on the opposing side’s unreasonable cooperation. Also, prepare a list of possible objections that the opposing side could use to keep the exhibit out of evidence. Prepare an answer for each of those objections.

Now you have all the testimony from the opposing side written on deposition transcripts and all of the exhibits you will introduce in trial.

Send over another set of proposed stipulations to see if the opposing side can save you both more work in presenting that evidence.

The entire case should not be stipulated to, however. Your client and your witnesses should still testify in order to give your case the emotional heft it needs to get the results you are requesting.

Preparing Your Witnesses For Trial.

Be sure all of your witnesses are on your proposed witness list. Otherwise, you may not be able to call them.

Issue a Rule 237 Notice To Appear for every witness you intend to call. File the Notice To Appear with the clerk to record it. If your witness does not appear, you will be granted a continuance to take their testimony later based on your Notice To Appear.

Write the questions for your witnesses out in advance. Do your questions prove your items on your facts wishlist? Do you mention or hint at your theme? Write out the possible objections to each question and how you intend to overcome that objection. Share the questions with your witnesses in advance.

Write out a possible cross-examination in advance. Do the cross examination on your witness in advance as though you were the opposing counsel.

Finally, prepare the most important witness, yourself. Read your opening statements and closing arguments and cross examination questions in front of the camera on your computer and play it back. You are probably better than you think.

Have a co-counsel. The human mind cannot effectively listen to the opposing side’s case, object to their evidence and prepare and present their own case simultaneously. You are going to need to modify your closing to reflect the evidence that your opponent presented (or didn’t) you cannot expect to recollect your opponent’s case as you attack that case. Ask a colleague to sit in on the trial with you and be the observing/note-taking attorney at the very least. 

Now that you know all of the evidence you will present, you can write your opening statement. Your opening statement will state your theme, summarize the stipulations and agreements that you and the opposing counsel have graciously made in order to shorten the trial for the judge, list off all the evidence you intend to prove and finalize by repeating your theme.

Courtesy Copies And Last Steps Before A Divorce Trial In Illinois

Review the judge’s standing order and the trial order one last time. Deliver all courtesy copies to the judge’s chambers with a polite cover letter and copy the opposing counsel on the cover letter.

If necessary, file a Motion In Limine to address any procedural matters you want the court to address in advance of trial.

Summarize your evidence with demonstrative exhibits. At the very least, create a timeline of events so the judge can follow along. If your opposing counsel does not agree to admit your demonstrative exhibit, you can always apologize to the judge and say, “I’m sorry but now I have to lay foundation for all the evidence that makes up my demonstrative exhibit…whose sole purpose is to make your analysis easier, judge. Bear with me, please.” The judge should be annoyed at your opposing counsel at this stage because demonstrative exhibits make cases easier not harder.

Print out a list of objections. You will not have time to think about what objection is appropriate when you hear the objectionable testimony. Merely look down at your list and hope it will refresh your memory. All evidence law stems from whether the witness saw or experienced what they were testifying to. When in doubt, object that they did not see or experience what is being described.

Print out a note you can see that says “Offer of Proof” so you will make an offer of proof if your opponent’s objection is sustained. Making an offer of proof is a big signal to the judge that you will appeal, if necessary, and thus provokes extra consideration for your arguments.

Prepare trial binders with your opening statement, direct examination questions, cross-examination questions, closing statement, copies of all filings as of that date, copies of all agreed exhibits, copies of all proposed exhibits, exhibit stickers, deposition transcripts and relevant, highlighted case law.

The Day Of Your Illinois Divorce Trial

Have an offer ready on the day of trial. Any offer. The other side may be riddled with fear and will, therefore, take the offer.

Your offer should be a completed Judgment For Dissolution Of Marriage with all the relief you are requesting that can be signed immediately by both parties.

The opposing side may reject the offer and be aggravated/intimidated that you made such an outrageous last-minute offer. That is okay, though, but don’t worry about what they think. After all, you are divorcing them. 

One of my favorite anecdotes about trial day offers is as follows:

On the eve of trial, plaintiff’s attorney, Joe Jamail, got an offer to settle for $300,000 before trial and for $5 million on the day of trial.

Joe said, “Can I get that offer in writing?”

The defense attorney said, ‘What if I just read the offer into the record?’

Joe said, “No, I need you to put it on paper—so you can wad it up and shove it up your ass.”

If and when the offer is rejected, ask to speak with the judge and your opposing counsel in private about some preliminary matters.

Tell the judge that you just made a last-minute offer to avoid trial. If opposing counsel exclaims that your offer was ridiculous, politely say “my second offer was trial…and here we are.”

Then, immediately compliment your opposing counsel for all the stipulations they’ve agreed to and lament that there are still things that are not agreed. Explicitly outline what is not agreed. Explain that you have exhibits that are not agreed to that you must introduce independently…especially demonstrative exhibits which are designed to help the judge but are cumbersome to introduce.

Hand the judge copies of the agreed exhibits or ask if the judge would prefer you to enter the exhibits into evidence on the record.

Maybe the judge will share in your lamentation and ask the opposing counsel to just let the evidence in as it appears to be inevitable.

Finally, discuss your motion in limine whose purpose is always to keep out discovery. The judge will never completely ban the introduction of any discovery whatsoever. This is America where people get to testify in their own trials. Instead, suggest a way to reduce the scope of testimony as a compromise to eliminating testimony.

The point of the procedural meeting before the trial is not to get your evidence entered and keep the opposing side’s evidence out. The point is to show the judge that you will be in command of this trial.

After you leave the procedural meeting you will all head into court and the show begins! It should be almost completely stress free because you will be reading off what you wrote. Long winded speeches need not be memorized. This is not a movie.

During your opponent’s opening statement, your opponent should say what they intend to prove. Furiously write down what they are promising…because if they don’t deliver, you will want to remind the judge during your closing statement.

Meanwhile, you will want to keep your fact wishlist handy. Your co-counsel should notate every instance where you get the fact into evidence so you can accurately list off of the evidence you had successfully introduced in your closing statement.

You have done all of your work in advance. You are merely reading off your written materials. The only real work remaining is derailing your opponent’s case. If you and your opponent stipulated to facts in a fair manner, there will not be much objecting at all.

Submit your demonstrative exhibits at the end of the appropriate witness’s testimony.

The trial will not go perfectly but you will do a good job because you were prepared.

“[N]o trial is perfect” Rios v. Navistar Int’l Transp. Corp., 558 NE 2d 252 – Ill: Appellate Court, 1st Dist. 1990, Vanderhoof v. Berk, 47 NE 3d 1080 – Ill: Appellate Court, 1st Dist., 1st Div. 2015, People v. Redmon, 2022 IL App (3d) 190167 – Ill: Appellate Court, 3rd Dist. 2022, Eychaner v. Gross, 747 NE 2d 969 – Ill: Appellate Court, 1st Dist., 1st Div. 2001, People v. Bush, 2022 IL App (3d) 190283 – Ill: Appellate Court, 3rd Dist. 2022

Finally, you will read off your closing argument. You will restate your theme. You will read off all the evidence you admitted. You will cite the law. You will then apply the law to the evidence you admitted. You will then request relief. You will remind the court if your opponent promised to submit evidence in their opening statement but failed to do so in their case in chief. Finally, you will offer the judge a proposed Judgment of Dissolution of Marriage which incorporates all of the findings and relief you’ve proposed.

The average family law attorney is a very nice person that likes to help broken families. The average family law attorney did not go into family law because they love litigation. The average family law attorney will not be as prepared for a divorce trial as you will be if you follow even half the tips I have written about here.

Are you ready for a divorce trial? Is your attorney ready for a divorce trial? Does your attorney attend conferences about divorce trials and write 3500 word essays about how to prepare for a divorce trial? If you would like a divorce attorney like that…give me a call.

Until then, here’s my essay in checklist form:

  1. Request trial date
    • Insist that the order state that the trial be in-person.
    • Calendar all deadlines with two-week and one-week reminders for each deadline.
      • Reminder to file motion for continuance if any deadline is missed.
  2. Hire a court reporter
    • Ask opposing counsel if they will split the fee.
  3. Get a copy of judge’s standing order.
  4. Pick a theme for your case
  5. Prepare closing argument
    • What relief do you want?
    • What law should apply to get that relief?
    • What facts do you wish to apply to that law to get that relief.
      • Who can testify to those facts?
  6. Issue first set of stipulations.
  7. What witnesses do you need to call to prove remaining facts?
    • Confirm with your witnesses via email that they will testify to the facts.
    • Schedule depositions of other witnesses.
      • Order transcripts of those depositions.
    • Issue Rule 237 Notices To Appear.
  8. Prepare direct examinations of your witnesses
    • Prepare cross-examinations of your witnesses
    • Practice direct examination and cross examinations on your witnesses
  9. Submit a Request To Admit as to the genuineness of any exhibits you’d like to introduce.
  10. Prepare demonstrative exhibits
  11. Submit a second set of stipulations to opposing counsel.
  12. Hire a co-counsel
  13. Prepare trial binders
    1. Write an opening statement
    1. Finalize your fact wishlist
    1. Finalize your closing argument.
  14. Prepare a motion in limine
  15. Prepare 2 final judgments of dissolution of marriage. 1 to sign and 1 to enter at the end of trial.
  16. Have a list of objections ready.
  17. Review how to do an offer of proof.
  18. Make final offer to opposing party.
  19. Ask for a meeting with the judge regarding procedural matters
    1. Present stipulations.
    1. Present motion in limine.
    1. Show judge that final documents have been prepared for signature and for entry.
  20. Write down what your opponent intends to prove in their opening statement.
    1. Your co-counsel should keep track if they actually introduce the promised evidence.
  21. Present your case verbatim as prepared.
  22. Object appropriately to your opponent.
  23. Modify your closing statement to fit the facts that were actually admitted into evidence.

Note: like many of my articles, I will be modifying this article in the future. This is not an all-encompassing treatise on how to do an Illinois divorce trial. This article is merely a collection of thoughts and reminders of how to do a better Illinois divorce trial.