Posted on October 15, 2021

Translating During An Illinois Divorce

“The official language of the State of Illinois is English.” 5 ILCS 460/20

However, one or both parties to an Illinois divorce may not speak English well enough to adequately understand and communicate during their Illinois divorce court proceedings.

“Fundamental due process rights require a court to permit an interpreter to translate courtroom proceedings when a party does not fully understand English.” People v. Resendiz, 2020 IL App (1st) 180821 – Ill: Appellate Court, 1st Dist., 3rd Div. 2020

An Illinois divorce court will ensure that a party needing an interpreter will have one present at their hearing.

“Whenever any person is a party or witness in a civil action in this State, the court shall, upon its own motion or that of a party, determine whether the person is capable of understanding the English language and is capable of expressing himself or herself in the English language so as to be understood directly by counsel, court, or jury. If the court finds the person incapable of so understanding or so expressing himself or herself, the court shall appoint an interpreter for the person whom he or she can understand and who can understand him or her. All appointments for court interpreters in civil matters shall be pursuant to the Illinois Supreme Court Language Access Policy and the judicial circuit’s Language Access Plan that is appropriate for the demands and resources specific to the Illinois courts within that particular circuit.
    (b) The court shall enter an order of its appointment of the interpreter who shall be sworn to truly interpret or translate all questions propounded or answers given as directed by the court.”735 ILCS 5/8-1403

That interpreter may be a certified interpreter or merely someone who the court knows to speak English and the litigant’s language.

“The Supreme Court may establish and administer by rule or procedure a program of testing and certification for foreign language court interpreters.” 705 ILCS 78/5

A judge is not bound to certified translators. A judge can swear in anyone they believe can translate. (I speak Spanish fluently and I’m often called upon to interpret in order to move a court call forward)

“When necessary, interpreters may be sworn truly to interpret and the calling of an interpreter is normally within the discretion of the trial court “ People v. Starling, 315 NE 2d 163 – Ill: Appellate Court, 1st Dist. 1974

No matter who gets called to interpret, they must swear an oath that they are interpreting fully and accurately.

“Before beginning to interpret in any legal proceeding, or before interpreting for several legal proceedings in one day, every unregistered interpreter shall swear or affirm in open court that he or she will make a true and impartial interpretation using his or her best skill and judgment in accordance with the standards prescribed by law and the ethics of the interpreter profession and that he or she will, in the English language, fully and accurately, repeat the statements of such person to the court before such proceeding takes place, and will repeat all statements made during such proceeding from English to sign language or a Limited English Proficient Person’s native language fully and accurately.” Illinois Supreme Court – Language Access Policy, amended Sept. 20, 2016

What If The Interpretation Is Not Good During An Illinois Divorce Case?

As a speaker of three languages, I can assure you that all interpretations are not created equally. A translation can be challenged if anyone believes that the interpretation doesn’t accurately convey what was said.

“It is obvious the interpreter was not fully, completely or accurately translating the questions and answers. When an interpreter is employed, that practice must be strictly followed; otherwise the possibility of editing, and error, rests solely with the interpreter. Due process rights of persons charged with crimes cannot be short-cut by avoiding the ritual of translating each question and answer.” Starling, 21 Ill.App.3d at 222, 315 N.E.2d 163.

The translation does not need to be a perfect word-for-word interpretation. The translation must simply convey what was said.

An “interpreter’s failure to translate all proceedings word for word did not deprive [a party] of a fair hearing.” Figueroa v. Doherty, 707 NE 2d 654 – Ill: Appellate Court, 1st Dist., 2nd Div. 1999

“An interpreter’s account of the answers of a witness need not be literal as long as the answers of the interpreter and the witness amounted to the same thing.” Seniuta v. Seniuta, 334 NE 2d 261 – Ill: Appellate Court, 1st Dist. 1975

When in question, an interpreter can testify as an expert as to what something really means in English or another language.

“An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.” Ill. Sup. Ct. R. 604

An interpreter’s translation is not subject to the hearsay rule of evidence.

“[A]n interpreter’s translation of a party’s testimony from a prior judicial proceeding does not constitute hearsay, because the interpreter is merely a conduit for testimony and makes no statement which is his or her own.” People v. De Jesus, 389 NE 2d 260 – Ill: Appellate Court, 2nd Dist. 1979

Translation And Confidentiality

Translators are often used between attorneys and their own clients. Normally, lawyers cannot reveal any information about a client unless the client authorizes the disclosure of that information.

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

Typically, if the information was told to another person not a lawyer or client, the attorney-client privilege is waived.

“[A] client may waive the privilege by voluntary disclosure to others” THE PEOPLE v. Ryan, 197 NE 2d 15 – Ill: Supreme Court 1964

A translator is not an attorney or a client but their translation will not amount to a disclosure to a third party and, thus, a waiver.

A “language interpreter” is a person who aids a communication when at least one party to the communication has a language difficulty.
    (b) If a communication is otherwise privileged, that underlying privilege is not waived because of the presence of the language interpreter.
    (c) The language interpreter shall not disclose the communication without the express consent of the person who has the right to claim the underlying privilege. 735 ILCS 5/8-911

Translated Documents During An Illinois Divorce

Oftentimes, documents will be presented as evidence during the course of an Illinois divorce.

A document written in a foreign language will not be considered by an Illinois divorce court if there is not a certified translation attached to said document.

“A certified translation should have been supplied at the time [a foreign language] affidavit [is] filed” Valdivia v. CHICAGO & NW TRANSP. CO., 409 NE 2d 457 – Ill: Appellate Court, 1st Dist. 1980

What constitutes a certified translation? An affidavit swearing to the full and accurate interpretation of the document. Still, the translator may be called to swear to that translation in court if the translation is in question.

A “trial court rule[s] properly [when] refusing to admit [a translated document when the translator is unknown as] no adequate foundation for its admissibility having been presented.” Santiago v. Silva, 413 NE 2d 139 – Ill: Appellate Court, 1st Dist. 1980

Recordings In A Foreign Language During An Illinois Divorce

Video or audio recordings in a foreign language may also be admitted into evidence accompanied by an English translation transcript.

“Where a recording contains statements in a foreign language, it would be impractical, or even impossible, to require the trier of fact to rely on the recording to the exclusion of an English-translation transcript…[W]here a recording contains statements in a foreign language, the trier of fact can consider those statements as evidence only if the statements have been translated into English.” People v. Betance-Lopez, 38 NE 3d 36 – Ill: Appellate Court, 2nd Dist. 2015

A Lawyer’s Duty To Translate While Communicating With His Client

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Rule 1.4 – Communication, Ill. Sup. Ct. R. 1.4

Clearly this can only happen in a client’s native language via interpreter if the client cannot speak English.

Illinois divorce law is hard. It’s even harder when you don’t speak English as your first language. If you’d like to discuss how language will affect your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.

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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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