Posted on June 27, 2021

Motions In Limine In An Illinois Divorce Case

“In Limine” is a latin term for “on or at the threshold; at the very beginning; preliminarily.” Specifically, in an Illinois divorce, a motion in limine is a motion made before trial. Trial is where evidence is offered to the court. A motion in limine can either restrict or admit that evidence in advance of the trial where the evidence will be considered and weighed.

“A motion in limine merely presents, in a pretrial setting, an issue of admissibility of evidence that is likely to arise at trial… When a motion in limine is made, the trial judge has broad discretion to grant or deny the motion or choose not to entertain the motion at all.” Schuler v. Mid-Central Cardiology, 729 NE 2d 536 – Ill: Appellate Court, 4th Dist. 2000

Motions in limine are not based on a particular rule but rather the concept that courts get to consider or exclude evidence as they see fit.

“A motion in limine is addressed to a court’s inherent power to admit or exclude evidence.” People v. Zimmerman, 2018 IL App (4th) 170695, ¶ 134

“The purpose of a motion in limine is to bring to the trial court’s attention—prior to trial—evidence that is potentially irrelevant, inadmissible, or prejudicial, and to obtain a pretrial ruling on whether the evidence may be admitted or excluded.” Snowstar Corp. v. A&A Air Conditioning & Refrigeration Service, Inc., 2024 IL App (4th) 230757 (citations and quotations excluded)

In non-divorce trials, motions in limine are usually focused on protecting a jury from prejudicial evidence.

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ill. R. Evid. 403

“An in limine motion permits a party to obtain an order before trial excluding inadmissible evidence and prohibiting interrogation concerning such evidence without the necessity of having the questions asked and objections thereto made in front of the jury. Thus, the moving party will be protected from whatever prejudicial impact the mere asking of the questions and the making of the objections may have upon a jury” Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545 – Ill: Supreme Court 1981

In an Illinois divorce there is no jury. “There shall be no trial by jury” 50 ILCS 5/103. In an Illinois divorce trial, the finder of fact is a judge.

To prove evidence is prejudicial, the movant would have to expose the judge to the same prejudicial information they are trying to keep from the judge?!? This would defeat the entire purpose at motion in limine for prejudicial reasons.

In an Illinois divorce, a motion in limine is brought before a divorce court for the purpose of efficiency or for sanctions.

Motions In Limine For The Sake Of Efficiency In An Illinois Divorce

“[T]he admissibility of evidence shall be determined by the court” Ill. R. Evid. 104(a)

There are many items which a party to a divorce could present to the court which would be inadmissible: hearsay, privileged information, religious beliefs, certain kinds of character evidence and criminal convictions.

In the pre-trial stage of a divorce case, proposed exhibits and witnesses should be disclosed between the parties. These exhibits and witnesses should make each side’s evidence clear and if that evidence is clearly inadmissible, a motion in limine may be in order.

“[E]ven if the court concludes the evidence is inadmissible, it has the discretion to deny the motion in limine” Cunningham v. Millers General Ins. Co., 591 NE 2d 80 – Ill: Appellate Court, 4th Dist. 1992

If no motion in limine is made or the motion in limine is denied, the same arguments for inadmissibility will occur throughout the trial except needless preparation will have been performed by both parties in case the objections are not granted.

Motions In Limine Due To Sanctionable Behavior In An Illinois Divorce Case

Bad behavior by either party may result in sanctions from the court. Sanctions from the court may be simply attorney’s fees and fines. Sanctions may also be a bar to present evidence in a party’s case in chief.

Typically, sanctions which bar evidence are due to the fact that discovery orders were not complied with. After all, how can you present evidence when you refused to provide the opposing party with the evidence they requested?

“It is within the trial court’s discretion to weigh the equities and make the final determination with respect to discovery orders.” Yassin v. Certified Grocers of Illinois, Inc., 502 N.E.2d 315, 326-27 (111. App. Ct. 1986)

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision…of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(i) That further proceedings be stayed until the order or rule is complied with;

(ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;

(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;

(iv) That a witness be barred from testifying concerning that issue;

(v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party’s action be dismissed with or without prejudice;

(vi) That any portion of the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue; or

(vii) That in cases where a money judgment is entered against a party subject to sanctions under this subparagraph, order the offending party to pay interest at the rate provided by law for judgments for any period of pretrial delay attributable to the offending party’s conduct.

In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is willful, a monetary penalty.” Ill. Sup. Ct. R. 219

Any of the above rulings can be requested in a motion in limine based on failure to comply with discovery. If granted, the violator’s evidence may be denied. Or, the violator’s pleadings may be stricken which would render their evidence irrelevant and, therefore, inadmissible.

What Happens When A Motion In Limine Is Denied In An Illinois Divorce?

Illinois divorce judges are eager to grant motions in limine for the sake of crystal clear inadmissibility or sanctions but for any other reason…they will likely deny a motion in limine.

“The ability to restrict interrogation makes the in limine order a powerful weapon. This power, however, also makes it a potentially dangerous one. Before granting a motion in limine, courts must be certain that such action will not unduly restrict the opposing party’s presentation of its case. Because of this danger, it is imperative that the in limine order be clear and that all parties concerned have an accurate understanding of its limitations.”  Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545 – Ill: Supreme Court 1981

“A disadvantage of a motion in limine is that a court rules on it in a vacuum, before hearing the full evidence at trial that may justify admission or require exclusion. Trial judges should be cautious in entering broad in limine orders” Cunningham v. Millers General Ins. Co., 591 NE 2d 80 – Ill: Appellate Court, 4th Dist. 1992

When a motion in limine is denied, the objections remain and can (and should) be used in the trial. The judge has only said they have not decided on the admissibility of the evidence YET.

“The denial of a motion in limine does not in itself preserve an objection to disputed evidence that is introduced later at trial…When a motion in limine is denied, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review.” Simmons v. Garces, 763 NE 2d 720 – Ill: Supreme Court 2002 (internal quotations and citations omitted)

“When a motion in limine is denied, the unsuccessful movant is left with the procedure of specifically objecting to the evidence when it is offered at trial. The rule is well established that the denial of a motion in limine does not preserve an objection to disputed evidence later introduced at trial. The moving party remains obligated to contemporaneously object when the evidence is offered, or the objection will be waived.” Cunningham v. Millers General Ins. Co., 591 NE 2d 80 – Ill: Appellate Court, 4th Dist. 1992 (citations omitted)

If your opponent presents a motion in limine, simply request that it be denied because the objections can be made one-by-one later in trial with no prejudice to either party.

“No actual prejudice is inflicted by the denial of a motion in limine, in itself, because the ruling is always subject to reconsideration during trial.” People v. Hancock, 2014 IL App (4th) 131069, ¶ 123

If you do not object to evidence you believe is not admissible, the evidence will be admitted.

“In civil trials, even if the court rules before or at trial on the record concerning the admission of evidence, a contemporaneous trial objection or offer of proof must be made to preserve a claim of error for appeal.” Ill. R. Evid. 103(b)(2)

But you don’t have to orally object every time the bad evidence is brought up. One oral objection is enough to preseve the record.

“While there is not always a need to repeat the objection each time similar evidence is presented…, one must nonetheless object the first time the evidence is introduced.” Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502, 645 N.E.2d 896, 898 (1994)

What Happens When A Motion In Limine Is Granted In An Illinois Divorce?

“The in limine order has been characterized as a potent weapon because it enables a party prior to trial to limit or to prohibit interrogation by the other party Because it places these restrictions on the nonmoving party’s presentation of its case, it is imperative that the in limine order be clear and that all parties accurately understand its parameters.” Lundell v. Citrano, 472 NE 2d 541 – Ill: Appellate Court, 1st Dist. 1984 (citations omitted)

When a motion in limine is granted the Illinois divorce judge must “make the order clear and precise so that all parties concerned have an accurate understanding of its limitations.” Cunningham v. Millers General Ins. Co., 591 NE 2d 80 – Ill: Appellate Court, 4th Dist. 1992

“Oral in limine motions and orders provide fertile ground for confusion and misunderstanding during the trial. For this reason, in addition to a written motion a written proposed order should be prepared by the moving party prior to the trial court’s ruling on the motion. The proposed order must clearly and specifically outline the evidence to be excluded. The trial court’s subsequent disposition of the motion and its limitations on the presentation of evidence would then be part of the record of the cause.” Lundell v. Citrano, 472 NE 2d 541 – Ill: Appellate Court, 1st Dist. 1984 (citations omitted)

The party requesting the motion in limine must still be wary of the other party trying to insert the prohibited evidence into the record.

“It has been held that where evidence is offered in violation of an in limine order, the opposing party must object or the issue will be considered to be waived.” Decker v. St. Mary’s Hosp., 619 NE 2d 537 – Ill: Appellate Court, 5th Dist. 1993

“Once a motion in limine is granted, the movant must be vigilant and object when evidence is presented which may violate the order. The purpose of an in limine order is to exclude inadmissible evidence, not to create a trap which results in a new trial if the court in retrospect determines the rule was violated.” Cunningham v. Millers General Ins. Co., 591 NE 2d 80 – Ill: Appellate Court, 4th Dist. 1992

A motion in limine violation causing a new trial is unlikely because the finder of fact is the judge not a jury. It is hard to imagine evidence a judge considered and then barred depriving a party of a fair trial.

“A new trial may be granted for a violation of an in limine order only if the order’s prohibitions are specific, the violation is clear, and the violation deprived the moving party a fair trial” Compton v. Ubilluz, 819 NE 2d 767 – Ill: Appellate Court, 2nd Dist. 2004

“In order for a violation of an in limine order to serve as the basis for a new trial, the party seeking the exclusion of the evidence must have been deprived of a fair trial.” Jones v. Chicago Osteopathic Hosp., 738 NE 2d 542 – Ill: Appellate Court, 1st Dist., 3rd Div. 2000

So, violating an order in limine in a divorce trial is likely toothless. A violation will certainly annoy the judge who will simply disregard the evidence they previously deemed inadmissible.

Furthermore, rulings on a motion in limine (or any evidentiary decision) are unlikely to be appealed.

“Generally speaking, evidentiary motions, such as motions in limine, are directed to the trial court’s discretion. A trial court’s ruling on such motions will not be disturbed on review absent an abuse of that discretion” In re Leona W., 888 NE 2d 72 – Ill: Supreme Court 2008

“A motion in limine is an interlocutory order and remains subject to reconsideration by the court throughout the trial….the failure to raise an objection constitutes a waiver of the issue on appeal.” Cetera v. Difilippo, 404 Ill. App. 3d 20, 40 (Ill. App. Ct. 2010)

An objection to a ruling on a motion in limine must, additionally, be brought forth in a post-trial motion. Balsley v. Raymond Corp., 232 Ill. App. 3d 1028, 1029 (1992)

If your Illinois divorce is going to trial, do yourself and the judge a favor: file a motion in limine. To learn more about how this is done, please contact my Chicago, Illinois family law firm to speak with an experienced divorce attorney.

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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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