Posted on November 21, 2021

Public Records In An Illinois Divorce Trial Or Hearing

You cannot just show up in an Illinois divorce court with a bunch of documents for a judge to review. Documents are an “out of court statement to prove the truth of the matter asserted.” Therefore, documents are hearsay and inadmissible in an Illinois court of law.

The theory is that anyone could have written the document and you cannot cross-examine a document. So, a document, by itself, is inherently unreliable.

There are some documents that are so inherently reliable that an Illinois divorce court will automatically admit them. Most documents made by a government agency are inherently reliable and therefore can be admitted into evidence without testimony from the person who created the public document.

To be certain a public document will be admitted by an Illinois divorce judge, it is best to have a public official certify that the document was made in the regular course of business.

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term “business,” as used in this rule, includes business, profession, occupation, and calling of every kind.” Ill. Sup. Ct. R. 236

Public records are an exception to any hearsay objection if they meet the following requirements.

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness…Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, police accident reports and in criminal cases medical records and matters observed by police officers and other law enforcement personnel, or (C) in a civil case or against the State in a criminal case, factual findings from a legally authorized investigation, but not findings containing expressions of opinions or the drawing of conclusions,unless the opposing party shows that the sources of information or other circumstances indicate lack of trustworthiness.” Ill. R. Evid. 803(8)

The public records to be presented in an Illinois divorce trial cannot be a surprise. They must be presented to the opposing side well in advance. The opposing side will then have 14 days to contest the public records authenticity.

“If any public records are to be used as evidence, the party intending to use them may prepare a copy of them insofar as they are to be used, and may seasonably present the copy to the adverse party by notice in writing, and the copy shall thereupon be admissible in evidence as admitted facts in the case if otherwise admissible, except insofar as its inaccuracy is pointed out under oath by the adverse party in an affidavit filed and served within 14 days after service of the notice.” Ill. Sup. Ct. R. 216

Provide the government official who has the document you want to introduce with an affidavit that he or she is the keeper of that record.

“Form of certificate. The certificate of any such clerk of a court, city, village, town, county, or secretary, clerk, cashier, or other keeper of any such papers, entries, records or ordinances, shall contain a statement that such person is the keeper of the same, and if there is no seal, shall so state.” 735 ILCS 5/8-1205

If a signature of a clerk or government official is not sworn to, a copy of a government document may be entered so long as someone swears the copy is accurate.

“Sworn copies. Any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses.” 735 ILCS 5/8-1206

An original signature from a government employee is not required. “We further recognize the burden of requiring department heads to place their original signatures on (or personally stamp) all documents. The trial court properly ruled [that a] facsimile signature was sufficient” Estate of Zander v. Illinois Dept. of Public Aid, 611 NE 2d 86 – Ill: Appellate Court, 4th Dist. 1993

Without some kind of signature authenticating a government document, the document will not be admissible.

“The law is clear in Illinois that only authenticated copies or originals of judicial records are admissible for the purposes of showing the content of those records.” Schwartz v. Schwartz, 349 NE 2d 567 – Ill: Appellate Court, 1st Dist. 1976

Once there’s a signature or certification, copies are permitted as evidence.

“The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.” Ill. R. Evid. 1005

The judge has final say as to whether a document is admissible or not.

“A trial court decision on the admission of a document as a business record is a matter of discretion and is disturbed only for an abuse of that discretion.” In re Joseph S., 791 NE 2d 80 – Ill: Appellate Court, 1st Dist., 3rd Div. 2003

What Kinds Of Public Records Can Be Introduced In An Illinois Divorce Hearing Or Trial

There are really only two kinds of public documents that usable in an Illinois divorce trial: court records and municipal records.

Court documents from the divorce case or other court cases involving the marital parties may be entered into evidence so long as they are certified by the clerk of that court.

“Court records. The papers, entries and records of courts may be proved by a copy thereof certified under the signature of the clerk having the custody thereof, and the seal of the court, or by the judge of the court if there is no clerk.” 735 ILCS 5/8-1202

Real estate owned by either party may be verified by presenting a deed from the county the real estate is located in.

“Municipal records. The papers, entries, records and ordinances, or parts thereof, of any city, village, town or county, may be proved by a copy thereof, certified under the signature of the clerk or the keeper thereof, and the corporate seal, if there is any; if not, under his or her signature and private seal.” 735 ILCS 5/8-1203

When children are a part of an Illinois divorce, school records such as report cards can be introduced into evidence without a hearsay exception.

“It is well settled that a public or official record may come within an exception to the hearsay rule if it is required by statute or authorized by the nature of the public office. Such records constitute evidence of the matters properly required to be maintained and recorded therein.”

If a signature of a clerk or government official is not sworn to, a copy of a government document may be entered so long as someone swears the copy is accurate.” BOARD OF EDUC. OF COMMUNITY HIGH SCH. DIST. 94 v. REGIONAL BD. OF SCH. TRUSTEES, 613 NE 2d 754 – Ill: Appellate Court, 2nd Dist. 1993

Often, a divorce will have been finalized in another state or a prenuptial agreement will require the use of a particular state’s laws for the purposes of enforcement. That original state’s laws can be entered into evidence automatically.

“Foreign statutes. The laws of the other states and territories, when certified by the Secretary of State of that state or territory, shall be admissible as evidence in any court of this State.” 735 ILCS 5/8-1105

Similarly, case law from other states, if applicable can be entered into evidence automatically.

“Reports of courts. The books of reports of decisions of the supreme court, and other courts of the United States, of this state, and of the several states and the territories thereof, purporting to be published by authority, may be read as evidence of the decisions of such courts.” 735 ILCS 5/8-1106

Public records from countries outside of the United States are going to have to be authenticated by a keeper of records from that country.

For example, when it came to Polish deed the Illinois Supreme Court found that “[t]hese authentications, when coupled with the testimony of the witnesses as to the manner in which these records came into the custody of the certifying officer, are, in our judgment, sufficient to warrant their admission into evidence.” In re Estate of Ersch, 195 NE 2d 149 – Ill: Supreme Court 1963

What If I Can’t Get A Public Document Into Evidence?

Public records are reliable AND publicly known. If a public record is not being admitted for lack of authentication, it can be argued the public fact which the record states is so well known that the court should take judicial notice of the fact.

Judicial notice “operates to admit into evidence, without formal proof, those facts which are a matter of common and general knowledge and which are established and known within the limits of the jurisdiction of the court.” Palmer v. Mitchell, 206 N.E.2d 776 (Ill. App. Ct. 1965)

How do you get a fact into judicial notice? Just ask. The worst the judge can do is say “no.”

“[J]udicial notice is a branch of the law of evidence, and authorizes the court, whenever a fact is material, to take judicial notice of the fact, but it must be presented to the court in some way” People ex rel. McCallister v. Keokuk & Hamilton Bridge Co., 287 Ill. 246, 250-51, 122 N.E. 467 (1919)

Of course, it is better to be prepared with properly authenticated records and it is even better to have those records be stipulated to by both sides due to the inevitability of their admission into evidence.

If you’re preparing for an Illinois divorce hearing or trial, contact my Chicago, Illinois family law firm to speak with an experienced Chicago 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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