If you can’t agree on the final terms of a divorce, an Illinois divorce judge will make final determinations and issue a judgment of dissolution of marriage, a marital settlement order and/or a parental responsibilities and parenting time order.
In order for the Illinois divorce judge to come to these conclusions that will forever affect your, your spouse and your children’s lives, the judge must weigh the evidence. Not all evidence gets weighed, however. In order for an Illinois divorce judge to weigh evidence, that evidence must first be admitted pursuant to the Illinois Rules of Evidence.
The first test of any proposed evidence is whether that evidence is relevant or not to the case at hand.
“All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible.” Rule 402 – Relevent Evidence Generally Admissible; Irrelevant Evidence Inadmissible, Ill. R. Evid. 402
“”Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401 – Definition of “Relevant Evidence”, Ill. R. Evid. 401
Any irrelevant, silly, out-of-left-field question should be quickly met with an “Objection! Relevance” by the opposing counsel.
The court will then weigh whether the answer to the question should be allowed and if the chain of future questions which follow it shall continue.
“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time” Rule 611 – Mode and Order of Interrogation and Presentation, Ill. R. Evid. 611
Materiality And Relevance In An Illinois Divorce Case
Relevant evidence isn’t just evidence that is related to your divorce case. Relevant evidence is evidence that could possibly have an impact on the final decisions that the judge must make. Therefore, if you’ve stipulated to anything (and you should) anything related to those stipulations is now irrelevant.
Relevant evidence is said to be “material.” “Evidence should be admitted only if it is material.” Kniceley v. Migala, 603 NE 2d 843 – Ill: Appellate Court, 2nd Dist. 1992
Black’s Law Dictionary defines material as “Important; more or less necessary; having influence or effect; going to the merits; having to do with matter” Black’s Law Dictionary (10th ed. 2014)
“To be relevant, evidence must establish a fact of consequence to the determination of the pending action; it must be both material and have probative value.” Demos v. Ferris-Shell Oil Co., 740 NE 2d 9 – Ill: Appellate Court, 1st Dist., 4th Div. 2000
“Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Baraniak v. Kurby, 862 NE 2d 1152 – Ill: Appellate Court, 1st Dist., 2nd Div. 2007
The Illinois Marriage and Dissolution of Marriage Act specifically outlines what is relevant for the purposes of different matters. For example, in determining the best interests of the child the statute says “The court shall consider all relevant factors” and goes onto list the factors. If the proposed evidence is not clearly applicable to the Illinois Marriage and Dissolution of Marriage Act, it is probably irrelevant.
Another way to allege irrelevance and keep evidence out is to point out that the proposed evidence has no connection to what was plead in the written petition or motion.
“In determining whether evidence is relevant, the trial court must consider the evidence in light of the factual issues raised by the pleadings and it is not error to exclude testimony which does not bear on the specific issues under consideration.” Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 567 (1993)
A divorce court “exercises broad discretion in admitting relevant evidence that may assist the court in arriving at a custody determination, and the court should hear and weigh all relevant evidence.” Johnston v. Weil, 241 Ill. 2d 169, 180 (2011)
The same applies to the division of marital property where the statute reads that the court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors” and then lists those relevant factors. Everything outside of the “relevant factors” is presumably irrelevant
Questions do NOT exist in a vacuum, however. Questions are often asked to lay the foundation for more relevant questions to follow. If a lawyer explains to the judge that he is laying foundation with an irrelevant question, that question will usually be allowed. Irrelevant foundational questions cannot go on forever and eventually must be stopped.
Prejudicial Questions In An Illinois Divorce Hearing Or Trial
While many questions may be relevant, they may also have the taint of prejudice upon them. This is a big issue in cases that involve a jury but is not as important when a judge is deciding all matters. In an Illinois divorce, “There shall be no trial by jury” 50 ILCS 5/103
“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.” Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time, Ill. R. Evid. 403
Character Evidence In An Illinois Divorce Hearing Or Trial
In a divorce it’s easy to bring up instances of your spouse’s failings as a partner and parent. Per the Illinois rules of evidence, you are not supposed to, however.
“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion” Rule 404 – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes, Ill. R. Evid. 404
Furthermore, any discussion of either party’s bad behavior is irrelevant as to the division of marital assets.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct” 750 ILCS 5/503(d)
But, character evidence is probably relevant in determining parenting time and parental responsibilities.
“[I]n determining the fitness or unfitness of a parent. He must have in mind the character, moral stability, temperament, personality and honesty of the persons under consideration.” Nye v. Nye, 105 NE 2d 300 – Ill: Supreme Court 1952
If that conduct which indicates character is happening outside of parenting time, discussion of said conduct is probably irrelevant.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)
Almost all character evidence, if consistent, can be characterized as a habit and, therefore, will be admissible under those grounds.
“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.” Rule 406 – Habit; Routine Practice, Ill. R. Evid. 406
Settlement Negotiations Are Irrelevant In An Illinois Divorce
When parties negotiate amongst themselves to resolve the issues in their divorce, those negotiations are not to be used as evidence in their Illinois divorce. Negotiations are irrelevant to the underlying issues in the divorce.
“Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:(1) furnishing or offering or promising to furnish-or accepting or offering or promising to accept-a valuable consideration in compromising or attempting to compromise the claim; and(2) conduct or statements made in compromise negotiations regarding the claim.” Ill. R. Evid. 408
Just because something was discussed in negotiations doesn’t mean it can never be brought up again. It is just the negotiation that this not admissible, not the substance of the negotiations.
“This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of settlement negotiations.” Rule 408 – Compromise and Offers to Compromise, Ill. R. Evid. 408
Relevance And Discovery In An Illinois Divorce
The point of insisting that only relevant matters be brought before the court is further pressed by the fact that you can only conduct relevant discovery.
“Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Rule 201 – General Discovery Provisions, Ill. Sup. Ct. R. 201
Irrelevant discovery is bound to only uncover irrelevant evidence, which is inadmissible and, therefore, pointless.
Judges love, relevant, brief questions. Judges hate rambling, prejudiced and irrelevant questions. Make sure you are asking the questions that judges love and objecting to the questions that judges hate. To learn more, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.
