Posted on June 3, 2023

Reopening Proofs In An Illinois Divorce Trial

A divorce trial is like putting on a play. You memorize your lines. You hit your marks. You hope to get the right reaction from the audience (the judge). If you forget to say something in a divorce trial you have the right to ask permission to re-present that evidence….but you better ask really nicely.

A trial has three parts: 1) opening statements, 2) presenting evidence and 3) closing arguments.

Opening statements are introducing the case to the judge and advising the judge what you will be presenting and why the proposed evidence is important to the case.

Presenting evidence is where each party formally presents evidence via testimony and exhibits.

The petitioner presents their evidence and then they “rest their case.”

The respondent then presents their evidence and also “rests their case.”

Both of these evidence presentations are called “the case-in-chief”

The case-in-chief is “the evidence presented  at trial by a party between the time the party calls the first witness and the time the party rests.” Black’s Law Dictionary (11th ed. 2019)

To rest is “to voluntarily conclude presenting evidence in a trial.” Black’s Law Dictionary (11th ed. 2019)

After you “rest” you cannot put on any more evidence. You are done. If you forgot something…that’s probably it.

What you can do to allow yourself extra time to submit evidence is ask the court to “reserve for rebuttal” while you rest.

Rebuttal gives you a second bite at the apple. Rebuttal is “the time given to a party to present contradictory evidence or arguments.” Black’s Law Dictionary (11th ed. 2019)

Rebuttal evidence is “evidence offered to disprove or contradict the evidence presented by an opposing party.” Black’s Law Dictionary (11th ed. 2019)

Rebuttal evidence should be limited to the scope of the evidence of a litigant’s opponent’s case in chief but it is really up to the judge.

“Although testimony that would be proper as evidence in chief should not be reserved for rebuttal, these matters rest largely within the discretion of the trial court and such rulings will ordinarily not be set aside upon review.”  THE PEOPLE v. Lion, 139 NE 2d 757 – Ill: Supreme Court 1957

After each side has rested and the rebuttals are finished, a divorce judge rarely makes an immediate ruling. The divorce judge will politely ask for closing arguments, schedule closing arguments for a later date and may even schedule a status date for final ruling.

During this period of a divorce case being in limbo between close of evidence and final ruling, evidence can still be introduced…if you ask really nicely via a motion to reopen proofs.

Proof is “evidence that determines the judgment of a court.” Black’s Law Dictionary (11th ed. 2019)

A “request to reopen evidence [can come] after the submission of the case and following the court’s entry of its order ruling on the parties’ outstanding issues, but prior to the judgment for dissolution of marriage.” MARRIAGE OF KILBY AND KILBY, 2023 IL App (3d) 210566 – Ill: Appellate Court, 3rd Dist. 2023

“In considering a motion to reopen proofs, the trial court should take into account whether (1) there is some excuse for the failure to introduce the evidence at trial, (2) the adverse party will be surprised or unfairly prejudiced by the new evidence, and (3) there are cogent reasons to deny the motion.” In re Marriage of Liszka, 77 NE 3d 1000 – Ill: Appellate Court, 3rd Dist. 2016

You better have a really good reason you did not present the evidence in your case-in-chief and why the new evidence’s introduction won’t be unfair to the opposing side.

There’s no jury in an Illinois divorce so there is no need to drag a jury of 12 strangers back into court for the reopening of proofs so a divorce judge should be pretty liberal about the practical reasons to not reopen proofs.

“[G]reater liberty should be allowed in the matter of opening the proofs when the case is tried before the court without a jury, as was the case here.” In re Marriage of Suarez, 499 NE 2d 642 – Ill: Appellate Court, 2nd Dist. 1986

Either way, a divorce court will likely have full authority to decide whether to reopen proofs or not with little review by an appeals court.

“A trial court does not abuse its discretion in denying a motion to reopen proofs where the evidence sought to be introduced is not of utmost importance and will not materially alter the trial court’s judgment.” In re Marriage of Liszka, 77 NE 3d 1000 – Ill: Appellate Court, 3rd Dist. 2016

“The decision to deny such motions is within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse thereof and where the failure to reopen the proofs resulted in substantial injustice.” In re Marriage of Suarez, 499 NE 2d 642 – Ill: Appellate Court, 2nd Dist. 1986

Invariably, a request to reopen proofs will be to clarify a point (usually via expert) rather than to introduce fresh evidence that wasn’t available at the time of the case-in-chief.

“Such a request to rehash previously introduced evidence stands antithetical to the principle of finality that a denial of a motion to reopen evidence seeks to promote….The circuit court’s denial of the motion to reopen evidence prevents an undeserved windfall of income reassessment when [the requester to reopen proofs] failed to meaningfully participate in discovering this information. Similarly, it prevents [the requester to reopen proofs] from benefitting from his failure to introduce his complete and truthful income situation at trial. MARRIAGE OF KILBY AND KILBY, 2023 IL App (3d) 210566 – Ill: Appellate Court, 3rd Dist. 2023

Once the judgment of dissolution is entered. There is no opportunity to reopen proofs.

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b)

After the judgment of dissolution is entered a motion to vacate the judgment of dissolution of marriage must be filed to introduce new evidence.

The standards for a motion to vacate are stricter than the liberal motion to reopen proofs.

“To be entitled to relief under [a motion to vacate], the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the section 2-1401 petition.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

Missing important information is a sufficient “meritorious claim” to vacate an order and present new evidence.

“Section 2-1401 of the [Illinois Code of Civil Procedure] provides a comprehensive statutory mechanism for obtaining relief from final judgments or orders that are older than 30 days…The purpose of a [motion to vacate] is to provide a statutory method to bring before the court facts not appearing in the record that, if known at the time of the entry of the judgment, would have prevented its rendition…. “the petitioner must show the new evidence was not known to [him or] her at the time of the proceeding and could not have been discovered by the petitioner with the exercise of reasonable diligence.”  Stated another way, the evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160 – Ill: Appellate Court, 2nd Dist. 2022 (citations and quotation omitted)

Everything else besides property issues is modifiable so the need to reopen proofs or vacate an order is less pressing for issues such as child support, maintenance and parenting time.

Illinois courts understand if you make a mistake at trial. “[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

It is a lot easier to do a divorce trial properly the first time. But, God forbid, if proofs need to be reopened, make sure you have a divorce lawyer who knows how to reopen proofs (and isn’t afraid to beg). Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois 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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