After months of status dates in court, exchanging documents and wondering when something will actually happen in your divorce, the divorce judge’s voice will boom, “Pretrial is scheduled for next month. Have your memos delivered to my clerk 7 days in advance!” What does this mean? What is a pretrial in an Illinois divorce and what do I need to do to prepare?
What Is A Pretrial In An Illinois Divorce?
Everything about a divorce in Illinois is geared towards settlement. You’re supposed to exchange financial document within 30 days. Cook County Court Rule 13.3.1(a)(i). You must propose a parenting plan within 120 days. 750 ILCS 5/602.10(a). Mediation is mandatory for divorce cases with children and encouraged for divorce cases without children. 750 ILCS 5/602.10(c).
If a divorce judge is ordering a pretrial conference, then you have not settled your divorce yet. The divorce judge will want to know why you have not settled, what the judge can order, preliminarily, to encourage settlement. If no settlement seems possible to the judge, order will be entered to adequately prepare everyone for trial.
How Is a Pretrial Conference Supposed To Work In An Illinois Divorce?
“Pretrial procedure. The holding of pretrial conferences shall be in accordance with rules.” 735 ILCS 5/2-1004.
The “rules” this Illinois statute is referring to is the series of court procedure rules that both the Illinois Supreme Court and your local county court have enacted. So, in addition to knowing the Illinois statutes that govern your divorce, you are expected to be familiar two other series of rules which are published separately.
Pretrial Conferences According To The Illinois Supreme Court Rules.
The Illinois Supreme Court Rules are a series of rules that have the power of law but exclusively deal with court procedures that are better suited to be written by an Illinois court rather than the Illinois legislature. Think of the court rules as the “how” of Illinois divorce proceedings not the “what” of Illinois divorce law.
The Illinois Supreme Court’s Rules regarding Pretrial are as follows:
“ Initial Case Management Conference. Except as provided by local circuit court rule, which on petition of the chief judge of the circuit has been approved by the Supreme Court, the court shall hold a case management conference within 35 days after the parties are at issue and in no event more than 182 days following the filing of the complaint.” Ill. Sup. Ct. R. 218(a)
No divorce pretrial has ever been done within 35 days but pretrials are useful so you should feel comfortable reminding the judge that you need one within 182 days for the filing of the petition for dissolution of marriage.
The rules then elaborate as to what should be covered at a case management conference (we only call them “pretrials” in the domestic relations division of Cook County)
“(1) the nature, issues, and complexity of the case;
(2) the simplification of the issues;
(3) amendments to the pleadings;
(4) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(5) limitations on discovery including:
(i) the number and duration of depositions which may be taken;
(ii) the area of expertise and the number of expert witnesses who may be called; and
(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions;
(6) the possibility of settlement and scheduling of a settlement conference;
(7) the advisability of alternative dispute resolution;
(8) the date on which the case should be ready for trial;
(9) the advisability of holding subsequent case management conferences; and
(10) any other matters which may aid in the disposition of the action including but not limited to issues involving electronically stored information and preservation.” Ill. Sup. Ct. R. 218(a)
This is a great list of issues to address at any pretrial. If any of these items need to be addressed and the opposing counsel or judge gloss over them without discussion or recommendation, remind the judge that the item is included in the Supreme Court Rules’ list of matter which “shall be considered.”
“In child custody proceedings…the court shall address the appointment of a guardian ad litem or counsel for the child“ Ill. Sup. Ct. R. 904
More specifically, other portions of the Illinois Supreme Court Rules specify that, “[i]n an allocation of parental responsibilities proceeding under this part, an initial case management conference pursuant to Rule 218 shall be held not later than 90 days after service of the petition or complaint is obtained. In addition to other matters the court may choose to address” Ill. Sup. Ct. R. 904(a)
90 days seems about right if both parties are being diligent in communication and tendering initial discovery. If you’re the only party cooperating in this normally cooperative process, invoke this rule.
The Illinois Supreme Court Rules list a series of items that divorce and family law pretrials must address.
“[T]he initial conference shall cover the following issues:
- Parenting Education. The parents shall show proof of completion of an approved parenting education program as required by Rule 924, provide a fixed schedule for compliance, or show cause to excuse compliance;” Ill. Sup. Ct. R. 904(a)(1)
Parenting education classes are required. Just do them. It will be another thing to impressively tell the divorce judge at the pretrial conference that you have completed (and frame yourself as the compliant party).
“Allocation of Parental Responsibilities and Parenting Plan. The parents shall provide the court with an agreed order regarding allocation of parental responsibilities and an agreed parenting plan, if there is an agreement. In the event that the parents do not agree to a parenting plan, then each parent must submit a proposed parenting plan to the Court within 120 days after service or filing of a petition for allocation of parental responsibilities;” Ill. Sup. Ct. R. 923(a)(2)
This just underscores the statute 750 ILCS 5/602.10(a) which has the same requirement.
“Mediation. If there is no agreement regardingallocation of parental responsibilities or a parenting plan or both, the court shall schedule the matter for mediation in accordance with Rule 905(b) and shall advise each parent of the responsibilities imposed upon them by the pertinent local court rules.” Ill. Sup. Ct. R. 923(a)(3)
Again, a friendly reminder to follow the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/602.10(c)
(b) A full case management conference shall be held not later than 30 days after mediation has been completed. In addition to other matters the court may choose to address at the conference, and if the court has not appointed counsel previously, the court shall address whether to appoint an attorney for the child or a guardian ad litem or a child representative in accordance with section 506 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/506).” Ill. Sup. Ct. R. 923
Finally, a contested custody case is usually too much for a judge to independently investigate and determine the best interests of the child. So, a third attorney for the child, a guardian ad litem or child representative must be appointed.
The Illinois Supreme Court Rules outlines items that should be included in the court order issued immediately after the pretrial conference.
“Subsequent Case Management Conferences. At the initial and any subsequent case management conference, the court shall set a date for a subsequent management conference or a trial date.” Ill. Sup. Ct. R. 218(b),
Most divorce pretrials will involve the judge telling the attorneys to return to court to confirm that everyone has adopted the court’s initial recommendations. These recommendations are usually investigatory; did the parties finish mediation, has discovery been completed and seasonably updated, has the Guardian Ad Litem issued their report, etc.”
If the judge has heard enough and realizes that the parties will never settle and a trial needs to take place, the following steps must be taken per the Illinois Supreme Court Rules:
“At the case management conference, the court shall make an order which recites any action taken by the court, the agreements made by the parties as to any of the matters considered, and which specifies as the issues for trial those not disposed of at the conference. The order controls the subsequent course of the action unless modified. All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties. This rule is to be liberally construed to do substantial justice between and among the parties.” Ill. Sup. Ct. R. 218(c)
Additionally, a strict calendar will be established to accomplish these goals before the divorce trial.
“The court shall establish a pretrial calendar on which actions shall be placed for consideration, as above provided, either by the court on its own motion or on the motion of any party.” Ill. Sup. Ct. R. 218(d)
Pretrial Conferences According To The Cook County Court Rules
The Illinois Supreme Court rules specifically state that they only apply “Except as provided by local circuit court rule” So, if your divorce is in Cook County, Illinois, the Cook County Court Rules will be more important than the Illinois Supreme Court Rules in determining what is supposed to happen at your divorce’s pretrial conference.
“At the request of any party by written motion or by order of the judge, a settlement pre-trial conference may be held to attempt to resolve contested issues.” Cook County Court Rule 13.4(j)(i)
If you want a pretrial, just ask the court for one.
“The completed Uniform Pre-Trial Memorandum, in the form promulgated by the Presiding Judge of the Domestic Relations Division, shall be delivered to the judge and each attorney of record and unrepresented party no less than seven (7) days prior to the Settlement Pre- Trial Conference. The Pre-Trial Memorandum shall not become part of the common law record in the case unless otherwise agreed to by the parties.” Cook County Court Rule 13.4(j)(ii)
Each judge in the Cook County domestic relations division has their own policy when it comes to pretrial memos. None that I know use a “Uniform Pre-Trial Memorandum.” One family law judge refuses pretrial memos because, “the pretrial memos tell me what they want but the lawyers usually just tell me again at the conference.”
Your pretrial memo should not be a series of bullet points listing the facts followed by a numbered list of requests from you. Your pretrial memo should be a story. One page explaining the background. The next page explaining, logically, how and why the judge should rule.
“Failure to comply with this rule shall subject the non-complying party to sanctions, unless good cause is shown for failure to comply.” Cook County Court Rule 13.4(j)(iv)
Pretrials are pretty casual business in Cook County. I’ve never seen someone sanctioned over anything pretrial related.
“Upon assignment to a trial calendar, the trial judge may conduct a pre-trial conference in addition to any previous conference(s). Participation in a pre-trial conference with the trial judge may constitute a waiver of a party’s right to a substitution of judge as permitted by 735 ILCS 5/2-1001(a)(2). The trial judge may require the parties to waive their right to request a substitution of judge in the event the trial judge proceeds to conduct a pre-trial conference.” Cook County Court Rule 13.4(j)(iv)
If you ask for a pretrial from the judge who is going to conduct the trial in your case, you cannot invoke your right to substitute that judge if you don’t like the ruling.
This underscores a good point. The judge doesn’t order anything at a pretrial unless the parties agree to it. If you want the judge to consider evidence and make a ruling based on evidence, you need a hearing. The pretrial provides no evidence, it is merely a summary of the evidence by each side for the purposes of bringing the parties closer to settlement via recommendation from the judge as to how the judge would rule should that evidence be found credible by the judge after a full evidentiary hearing.
Of course, the summary of evidence to the judge is sure to imbue the judge’s mind with the facts of the case and you or your spouse’s arguments based on those facts. So, it’s not really fair to request a new judge if you don’t like the judge’s initial recommendations.
What To Do At Your Illinois Divorce Pretrial Conference?
You should prepare a pretrial memorandum and tender it to the judge’s clerk 7 days in advance. You do not need to file your pretrial memorandum but you must tender a copy of your pretrial memorandum to the opposing party or counsel. The pretrial memorandum should be a maximum of two pages, summarizing your case in a story-like format. The pretrial memorandum should include no evidentiary exhibits beyond the parties’ financial affidavits. The pretrial memorandum can include copies of every order, pleading, and motion filed in the case.
The pretrial memorandum should also include a list of all the items still outstanding in discovery and other matters that need to be arranged (see the list from both the Illinois Supreme Court Rules and the Cook County Court Rules above)
At the pretrial you should presume that the judge has read your pretrial memorandum and the pretrial memorandum of the opposing party.
When asked to speak you should summarize the three strongest points from your pretrial memorandum and subsequently attack the points of the opposing party’s pretrial memorandum (which should have been tendered to you in advance)
You should be prepared to tell the judge on what terms you are willing to settle the matter. The judge will work with you and the other party to negotiate closer to those terms of settlement. If you are unprepared to concede on your proposed settlement terms, tell that to the judge.
If you cannot reach some kind of agreement, you need to ask the judge for a trial and for discovery deadlines so you can adequately prepare for that trial.
If you are prepared for your divorce’s pretrial, the judge will believe that you are passionate about your case for a good reason: that you are right. If you are unprepared, the judge will surmise that if preparing for your case is not important to you, then the result is probably of limited importance as well.
A pretrial is your opportunity to showcase your version of events and your preferred result to your Illinois divorce judge. Even though no binding orders can come from a pretrial conference without agreement by the parties, take your pretrial seriously.
What Is A Binding Pretrial In An Illinois Divorce?
If either party to a divorce is feeling confident that the judge’s recommendations will be in their favor and they’d prefer to avoid the time and expense of a trial, that party can suggest a binding pretrial.
If both parties agree in advance to a binding pretrial, then the divorce judge’s recommendations will be adopted as orders…whether either party is satisfied or dissatisfied.
There’s no law about binding pretrials. Binding pretrials are a creature of your agreement.
“If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114
Illinois courts really like agreements. Even agreements to let the judge decide.
“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children” 750 ILCS 5/502(a)
The order scheduling the binding pretrial must include that the the pretrial will be binding by agreement of the parties.
It is common to have purely financial cases where the court only needs to decide division of property and support. These cases have no facts in dispute so there’s no need to present evidence in a trial…because all the evidence will be stipulated to by both parties.
In such cases, a binding pretrial is both economical and logically sound.
But, if there are facts in dispute and you believe a summary of those facts will fare better for you than a full disclosure of those facts over hours in trial…then maybe you should elect to have a binding pretrial.
If your case has any nuanced or atypical issues, whatsoever, do not allow yourself to enter into a binding pretrial. If a binding pretrial doesn’t go your way, you cannot appeal the judge’s now-binding recommendation.
Substituting Your Judge After A Pretrial In An Illinois Divorce
It is completely foreseeable to exchange discovery and go straight to pretrial in the hopes to resolve the matters which remain disagreed in your Illinois divorce.
After the judge issues pretrial recommendations, one side is not likely to be happy…and may want another judge who might have different recommendations.
Every party to an Illinois divorce is “entitled to one substitution of judge without cause as a matter of right.” 735 ILCS 5/2-1001(a)(2)(i)
You can not substitute your Illinois divorce judge if that judge has already made a substantial ruling (more than a continuance order)
“An application for substitution of judge as of right…shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case” 735 ILCS 5/2-1001(a)(2)(i)
A pretrial is a big step. It’s almost the end of the divorce case. How could this be an appropriate time to substitute a judge?
Most courts agreed that a pretrial was too far gone for a motion to substitute. A motion to substitute at pretrial was thought improper under the test the waters doctrine. The test waters doctrine “permits the denial of an initial motion for substitution of judge before substantial rulings have been made, if the party presenting the motion has been able to form an opinion as to the court’s disposition toward his or her case.” Bowman v. Ottney, 2015 IL 119000
The Illinois Supreme Court disagreed and has thrown out the test the waters doctrine.
“[T]he test the waters doctrine is an improper basis on which to deny a motion for substitution of judge as of right.” Palos Cmty. Hosp. v. Humana Ins. Co., Docket No. 126008, 9 (Ill. 2021)
Now, an Illinois divorce judge is likely to require the parties to sign and agreed order acknowledging that they have waived their right to substitute the judge if they, in fact, want a pretrial. This makes pretrials all the more serious as there is no going back from the judge’s first serious impression of the case at pretrial.
If you’re scheduled for a pretrial in your Illinois divorce case and would like help, please contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced family law attorney.