Sometimes a divorce is not that complicated. You used to be together…and now you are not. You have some assets, some debts, income and maybe some kids. Let’s resolve this divorce with a reasonable compromise!
Your spouse may not see it that way, however. Furthermore, your spouse may enjoy the divorce process as a way to exert whatever control they still have over you. Your spouse’s divorce lawyer may be more than happy to earn their living helping your spouse harass you through the divorce process.
If the mutually assured destruction of a divorce trial scares you more than it scares your spouse, will you be stuck in pre-judgment limbo forever?
How can you make your spouse come to a reasonable settlement in your Illinois divorce?
Well, the first step is to prepare final proposed divorce documents. The worst your spouse can do is say “no.” The best your spouse can do is say, “I disagree on points A, B and C” allowing you to at least define the points of disagreement for later negoatiation.
Getting A Judge To Help You Settle An Illinois Divorce Case.
There are a series of initial documents which must be filed at certain times. Make sure you’ve finished your homework before calling everyone into the principal (judge’s) office.
“The Petitioner shall serve the completed “Financial Affidavit” not later than thirty (30) days after service of the initial pleading and the Respondent shall serve the completed “Financial Affidavit” not later than thirty (30) days after the filing of the Responding party’s appearance” Cook County Court Rule 13.3.1(a)(i)
If there are children, the other mandatory document is the proposed parenting plan.
“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)
In theory, with a financial affidavit and/or a proposed parenting plan filed and outstanding discovery requested…you are done and the ball is 100% in the other side’s court. Time to let the judge know what a diligent litigant you are by scheduling a case management conference (also known as a pretrial).
Most judges schedule case management conferences on their own but you have the right to request a case management conference 35 days after the filing of the Petition For Dissolution Of Marriage.
“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)
Divorce cases with kids are supposed to get case management conference even sooner.
“In 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)
Outline in your motion for case management where you are at in the divorce case and the result you want from the divorce case.
“(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)
These ten items are everything! If you’re ready, the judge will ask the opposing side what they want and why your offer is not reasonable in their eyes.
The entire legal system wants you to settle your divorce.
“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 as provided in Sections 513 and 513.5 after the children attain majority.” 750 ILCS 5/502(a)
If the judge cannot persuade the parties to agree, he can force the parties to go to mediation (but only if there are children in the divorce).
“If there is no agreement regarding allocation of parental responsibilities or a parenting plan or both, the court shall schedule the matter for mediation…and shall advise each parent of the responsibilities imposed upon them by the pertinent local court rules.” Ill. Sup. Ct. R. 923(a)(3)
After mediation, another case management conference will be conducted where, if the parties have still not settled, a guardian ad litem or child representative shall be appointed to investigate the disagreement and possibly make recommendations to the court.
“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
Sooner or later, (hopefully sooner), the judge will provoke a settlement at case management or schedule a trial.
“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)
Preparing For Trial As A Strategy To Getting A Settlement In An Illinois Divorce
Try as the judge might…the judge cannot force a settlement if one party wants a trial. As Americans, we all have the right to due process.
“[D]ue process generally refers to notice and the opportunity to be heard.” The right of due process includes “a right to present evidence and argument, a right to cross-examine witnesses, and impartiality in rulings upon the evidence which is offered.” Fischetti v. Village of Schaumburg, 2012 IL App (1st) 111008, ¶ 16.
Furthermore, the Illinois Supreme Court has set standards for when cases should be closed.
“Effective July 1, 2022, the Time Standards for Case Closure in the Illinois Trial Courts are hereby established for cases filed on or after January 1, 2022” Illinois Supreme Court M.R. 31228 – In re: Time Standards for Case Closure in the Illinois Trial Courts – 03/25/22
These standards require 75% of family law cases with children to be resolved in 9 months (274 days), 90% of family law cases with children to be resolved in 15 months (457 days) and 98% of family law cases to be resolved in 18 months (548 days).
For divorce cases without children, those deadlines are slightly tighter at 9 months, 12 months and 15 months for each respective percentage.
An Illinois divorce judge is not going to care about your case getting resolved in under 9 months. There are plenty of other cases that will finalize quickly because the divorces are uncontested.
Judges will get conscious about the 15 month deadline and judges are required to give a case with children a trial by 18 months.
“All allocation of parental responsibilities proceedings under this rule in the trial court shall be resolved within 18 months from the date of service of the petition or complaint to final order. In the event this time limit is not met, the trial court shall make written findings as to the reason(s) for the delay.” Illinois Supreme Court Rule 922
Once a trial date is set, your spouse should become a lot more eager to settle the divorce case and avoid trial (which you may secretly want to avoid, too).
How To Settle A Divorce Case When You Are Scheduled For Trial
There’s lots of work to do on both sides before trial. Simply get your work done! Your divorce preparation always triggers more work for the other side.
Issue discovery. Send out 201(k) letters to demand the discovery you requested. File motions to update discovery. File motions to compel the discovery you have not received. File Rule 219 motions to exclude evidence for any failure to produce discovery.
Depose the opposing party. Your lawyer can ask your spouse to their face why they won’t settle and what it would take to get them to settle…and your spouse has to answer.
Depose witnesses (the opposing attorney must attend). Announce that you may hire an expert which forces the opposing side to depose that expert.
You should get an offer in lieu of them doing all of this work and incurring all these costs.
The opposing side can try to remove your leverage of an upcoming trial date by filing temporary motions or motions to continue.
“Any improper attempt to prolong a divorce case will be sanctioned. “The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation… If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137
“[T]he trial court possesses the inherent authority to control its own docket and the course of litigation, including the authority to prevent undue delay in the disposition of cases caused by abuse of litigation process.” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)
Furthermore, remind the opposing side that the refusal to settle can result in a failure to ask for any contribution to their fees when the case is over.
“[I]t is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regardless of one’s conduct during the litigation. There are times when a failure to compromise is frivolous.” In re Marriage of Mantei (1991), 222 Ill.App.3d 933, 942, 164 Ill.Dec. 870, 583 N.E.2d 1192
Reserve Issues You Don’t Agree Upon In A Divorce
If the opposing side still will not come to an agreement in advance of trial, perhaps there is no need for agreement. If the parties simply do not want to address that matter at this time…they can reserve the issue for later.
“The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.” 750 ILCS 5/401(b)
“Illinois law encourages resolution of all issues ancillary to dissolution, as well as dissolution itself, in a single proceeding, for reasons of certainty, financial security…and judicial economy. …Upon a finding of “appropriate circumstances,” however, section 401(b) of the IMDMA allows a court to enter a judgment of dissolution while reserving for later determination such issues as maintenance, child support, and property disposition.” In re Marriage of Kenik (1989), 181 Ill. App.3d 266 (citations omitted)
Courts shouldn’t allow these reservations of issues but courts often do. That issue can just be someone else’s problem. For most issues, it really doesn’t matter because the matters are presumed to be modified later.
For division of assets, though, you will have a HARD time reserving those matters.
When division of assets are “reserved following a dissolution of marriage judgment, the court could likely be required to adjudicate marital-property rights that have become entangled with the supervening rights of third parties, including subsequent spouses…Additionally, entering a judgment of dissolution prior to property disposition would complicate, rather than simplify, matters with respect to the rights of a surviving spouse in the event of an intervening death.” In re Marriage of Cohn, 93 Ill. 2d 190 (1982)
Settling On The Day Of Trial In An Illinois Divorce
Make a final offer on the day of trial. You have nothing to lose. In fact, settling on the day of trial is extremely common when the parties realize that the devil they know (the deal between them) may be better than the devil they don’t know (the legal conclusion the judge reaches).
Settlement offers outside of mediation are not a secret in Illinois. You can tell the judge what your settlement offer was and if it was rejected. If the judge thinks your offer is fair, the judge will be annoyed that the rest of the judge’s day will be consumed with presenting evidence that will only lead to the same final result as the already proffered offer.
If you want to settle your divorce case you must adopt the old Roman adage: “Si vis pacem, para bellum” or “If you want peace, prepare for war.” You and your attorney must be ready for trial in order to get the settlement you deserve. Any other posture is ludicrous, Polly Anna thinking that your opponent will immediately suspect, then understand…and then take advantage of.
If you’d like my help settling or trying your Illinois divorce case, contact my Chicago, Illinois family law firm to schedule a free consultation.