Hearing on a summary basis in an Illinois divorce

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.

More about This Topic

Generic selectors
Exact matches only
Search in title
Search in content

Recent Articles

Summary Hearings In An Illinois Divorce

Hearing on a summary basis in an Illinois divorce

It is common to walk into an Illinois court room, hear the lawyers make a few brief arguments and then receive a sweeping decision from the Illinois divorce judge based on those limited arguments. As they stumble out of court, their lives having been decided in a matter of minutes, the divorce litigants will ask “What just happened?” What happened was a summary hearing.

There are two kinds of hearings in an Illinois divorce. An evidentiary hearing and a summary hearing.

What Is An Evidentiary Hearing In An Illinois Divorce?

Evidentiary hearings are hearings wherein the court considers evidence that is governed by the Rules Of Evidence.

[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. Preamble

Every litigant in Illinois has “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.

Presenting evidence properly in an Illinois court of law is a time-consuming process that requires that every statement or document be properly authenticated. Meanwhile, the opposing counsel will interrupt the evidence-presenter with a barrage of objections.

Evidentiary hearings take a lot of time to complete. Often a divorce judge will not have available time for an evidentiary hearing until months in the future. In the meantime, whatever needs to be resolved by the court festers and probably gets worse.

Because of the cumbersome and delayed nature of an evidentiary hearing, judges and parties to an Illinois divorce often opt for a summary hearing instead.

What Is A Summary Hearing In An Illinois Divorce?

A summary hearing is usually a hearing about child support, maintenance or attorneys’ fees which is based on the financial affidavit and the financial affidavit’s supporting documents alone.

“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation, except an evidentiary hearing may be held upon a showing of good cause.” 750 ILCS 5/501(a)(3)

“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)

These matters are encouraged to be resolved on a summary basis because litigants and attorneys usually need the money immediately. Courts do not want to allow the party controlling the marriage’s finances to use that financial control as leverage for larger issues in the divorce.

Summary hearings are merely argument from both sides. Because summary hearings are usually financial in nature, the argument inevitably is “what number should we use for income?” The options are usually, the number on the financial affidavit, the W2s, the tax returns, or the paystub. These numbers should all be the same (but they hardly ever are).

Summary hearings are usually available within a month on a judge’s docket. So, parties to an Illinois divorce often attempt to make as many hearings summary as possible.

Proceeding via summary hearing is a great idea if you will prevail in a summary hearing but a terrible idea if you are more likely to prevail in an evidentiary hearing.

Summary hearings do not need to be exclusively about temporary financial issues…under certain conditions.

How To Get A Summary Hearing In An Illinois Divorce?

If the parties to an Illinois divorce agree to it, they can waive an evidentiary hearing and proceed on their motions on a summary basis.

“[T]here is no rule prohibiting the parties from waiving their right to an evidentiary hearing, as in any other civil action. The parties may stipulate to entry of judgment based on the pleadings, citation examinations, and other stipulated evidence… However, in contested matters, a trial is required.” Workforce Solutions v. URBAN SERVICES, 977 NE 2d 267 – Ill: Appellate Court, 1st Dist., 2nd Div. 2012

If there’s not an agreement between the parties, a summary hearing may still be possible. If the pleadings and affidavits clearly state each party’s position, the court may proceed on a summary basis.

“[I]n determining whether an evidentiary hearing is required, the circuit court must take all well-pleaded facts in the petition and affidavits as true.” People v. Coleman, 701 NE 2d 1063 – Ill: Supreme Court 1998

Illinois courts have “long held that motions may be decided on the basis of affidavits alone.” In re Marriage of Varco, 158 Ill. App. 3d 578, 580 (Ill. App. Ct. 1987)

Essentially, summary hearings are hearings on a motion for summary judgment and should be treated as such.

If there’s any fact alleged in the motions and responses that is not agreed upon by the parties, then an evidentiary hearing will be required to determine if the alleged fact is, in fact, true.

“Where a material issue of fact exists, summary judgment is inappropriate and an evidentiary hearing — a trial in effect — is required in ruling on the petition” People v. Vincent, 871 NE 2d 17 – Ill: Supreme Court 2007

“Where…the central facts of a…petition are controverted, an evidentiary hearing must be held.” Ostendorf v. International Harvester Co., 433 NE 2d 253 – Ill: Supreme Court 1982

Only when the court has heard sufficient evidence about the alleged fact in a previous hearing, can the court proceed on a summary basis.

“[M]atters asserted in [a] motion [that are] either a matter of record and already before the trial judge or were adequately called to the court’s attention by the verified motion.” In re Marriage of Chapman, 162 Ill. App. 3d 308, 315 (Ill. App. Ct. 1987)

Anytime A Guardian Ad Litem Is In A Courtroom. It Is A Summary Hearing

Understanding the distinction between an evidentiary hearing and summary hearing is especially important in a custody dispute.

When there’s a dispute about parenting time and parental responsibilities, a Guardian Ad Litem or Child Representative will be appointed to investigate the facts that are in dispute.

“[I]n those cases involving contested disputes, where there is an indication of a potential conflict between the child’s interests and a parent’s interests, a court has an obligation to appoint a GAL or child representative.”Macknin v. Macknin, 937 NE 2d 270 – Ill: Appellate Court, 2nd Dist. 2010

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

The guardian ad litem then reports back what they’ve learned to the court directly. The guardian ad litem does not need to authenticate their evidence and is not subject to any evidentiary objections.

“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)

Therefore, everything that a Guardian Ad Litem says is summary evidence. So, a Guardian Ad Litem turns every hearing into a summary hearing.

A party who is more comfortable with evidentiary hearings than summary hearings would be advised to appoint a child representative in lieu of a Guardian Ad Litem

“The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments.” 750 ILCS 5/506(a)(3)

The Illinois divorce process should be as simple as possible…but no simpler. Use the distinction between summary and evidentiary hearings to your advantage in your Illinois divorce case. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.