Sooner or later, during your Illinois divorce, you will attend a friendly status call where a party will ask that their motion be set for hearing. The judge will pause and then ask, “Will this be an evidentiary hearing?”
The counsel requesting the hearing will either say, “we can just pre-try it,” “the hearing will be summary in nature,” or “it will be a full evidentiary hearing, judge.”
What is an evidentiary hearing and why is are evidentiary hearings so momentous (and rare) in an Illinois divorce case?
What Is NOT An Evidentiary Hearing?
An evidentiary hearing is, initially, best understood by what it is not: a pretrial, an argument on the pleadings or a summary hearing.
A pretrial is a testament to the honesty and mutual trust that judges hold for divorce lawyers and divorce lawyers hold for each other (Yes, we do like and trust each other…for the most part).
A pretrial allows each attorney to submit a memo and then orally describe the facts to the judge as they understand them. The judge will consider the facts and then make a recommendation presuming that the facts are both true and provable. A pretrial in an Illinois divorce case is efficient and fair…if the parties agree on the facts.
If the parties don’t agree on the facts and the facts would be material to the judge’s decision, the pretrial will be continued to an evidentiary hearing in order for the judge to make findings of fact in order to base the judge’s rulings.
An argument on the pleadings is almost identical to a pretrial except the judge issues an order not a recommendation after the argument. Again, the facts cannot be in dispute for the judge to make a ruling on the pleadings alone.
A summary hearing is similar except with the formality of the judge only considering filed pleadings and filed affidavits. Summary hearings are typically allowed only to resolve temporary issues because time is of the essence. Summary hearings are brief and, therefore, can be scheduled quickly.
“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)
The facts in the pleadings and the affidavits will be considered true for the purposes of the summary hearing. If either party disagrees with those stated “facts,” they must show good cause…or return on a later date with proof of the real facts in an evidentiary hearing
Most divorce lawyers, in my experience, prefer pretrials and summary hearings because they are easy. Pretrials and summary hearings require little preparation and, more importantly, pretrials and summary hearings do not require the use of the Rules of Evidence.
All of the above abbreviated hearings are agreed to and are a waiver of what is (probably) a party’s right to an evidentiary hearing. When matters are truly contested on both the legal and the factual level, an evidentiary hearing is required.
“[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
What Is An Evidentiary Hearing?
An evidentiary hearing is a trial…but not a final trial on all matters. An evidentiary hearing is a judge considering and ruling on a matter which is temporary or leading up to the final trial. These temporary or interim matters are brought to court’s attention via motions.
A motion“is an application to the court for a ruling or an order in a pending case.” In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993).
The parties can then request a hearing on their motion.
“An evidentiary hearing, including the right to present witnesses and engage in cross-examination, must be given if properly requested in domestic relations cases.” In re Marriage of Giammerino, 81 Ill. App. 3d 998, 999 (1980)
Evidentiary hearings are a right. Specifically, an evidentiary hearing is enshrined by the right of due process. “Procedural due 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.
The easiest way to determine if an evidentiary hearing is required is if someone’s property could be taken away by the decision of a judge.
At a minimum, due process requires that a deprivation of property cannot occur without providing notice and an opportunity for a hearing appropriate to the nature of the case.” In re Marriage of Beyer and Parkis, 753 NE 2d 1032 – Ill: Appellate Court, 1st Dist., 1st Div. 2001
Because evidence is the crucial element necessary for an evidentiary hearing, an evidentiary hearing will not be held until discovery regarding the facts at issue is complete. This can take a while as those facts may be in the possession of a third party and can only be obtained by subpoena or deposition.
Once the evidentiary hearing actually begins, there are an elaborate set of rules which permit what evidence may actually be considered by the court. These are 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
The rules of evidence allow either side to object to the other party’ evidence…which includes testimony.
The objections are numerous. You must know the objections and make the objections contemporaneously with the attempted admission of the objectionable evidence. It is not easy to object within a second of your opponent’s proffering of evidence. To object effectively takes years of study and practice.
Under the Illinois Rules of Evidence objections include but are not limited to:
- Introducing evidence during an opening statement.
- Seeking to introduce exhibits after failure to exchange the exhibits in pretrial.
- Asking questions calling for hearsay.
- Asking leading questions.
- Asking confusing questions.
- Asking questions calling for evidence that is irrelevant.
- Asking questions that assume facts not already admitted into evidence.
- Asking questions that call for a conclusion.
- Giving unresponsive answers to a question.
- Introducing exhibits for which an inadequate foundation has been laid.
- Introducing exhibits without authenticating those exhibits.
- Badgering the witness.
- Prejudicial statements.
- Unethical conduct by the opposing counsel.
- Closing Statements containing evidence which was not admitted during trial.
When Are You Entitled To An Evidentiary Hearing In An Illinois Divorce Case?
Just because facts are disputed does not mean that an evidentiary hearing is inevitable.
An Illinois divorce court will, initially, rely on the fact that each counsel and the parties have sworn that the facts in their pleadings are true.
“[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)
Often motions in a divorce case address issues that the court is already familiar with. In such cases, the courts can make decisions without an evidentiary hearing because the court already knows the facts. Illinois courts can rule on “matters 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)
The court can even use the facts alleged in one pleading to dismiss another pleading without an evidentiary hearing.
“[D]ismissal of a petition without an evidentiary hearing will not be disturbed absent an abuse of discretion” People v. Coleman, 701 NE 2d 1063 – Ill: Supreme Court 1998
The massive amount of time which an evidentiary hearing consumes can sometimes bias a court against evidentiary hearings in favor for their shorter versions: a pretrial, an argument on the pleadings or a summary hearing. However, if there’s a disagreement on facts which are fundamental to the issues, the court must allow for an evidentiary hearing.
“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
This is why courts always allow a party to answer the other party’s motion: in order to determine if the facts are truly in dispute and, thus, whether an evidentiary hearing is, in fact, necessary.
“Once [the respondent] has answered, the circuit court will be in a position to determine whether a factual dispute exists as to these central issues and, if so, to hold an evidentiary hearing if the issues cannot be resolved on the basis of the pleadings, affidavits, and supporting materials submitted.” Ostendorf v. International Harvester Co., 433 NE 2d 253 – Ill: Supreme Court 1982
If a court does not consider the different alleged facts, the matter may be appealed and the appeals court will then consider the facts.
“In the event of a material evidentiary conflict, we must remand the matter to the trial court for an evidentiary hearing.” Viktron Ltd. Partnership v. Program Data, 759 NE 2d 186 – Ill: Appellate Court, 2nd Dist. 2001
“If a trial court renders its decision without an evidentiary hearing and without findings on any factual issue, de novo review is appropriate.” Hubbert v. Dell Corp., 835 NE 2d 113 – Ill: Appellate Court, 5th Dist. 2005
In an Illinois divorce there is only one matter (a very big one) that statutorily requires a full evidentiary hearing: child custody.
“In the absence of filing of one or more parenting plans, the court must conduct an evidentiary hearing to allocate parental responsibilities.” 750 ILCS 5/602.10(b)
Other matters can be determined without evidence if the court deems it appropriate.
Temporary matters regarding support may be decided via summary hearing or via evidentiary hearing
“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis …except an evidentiary hearing may be held upon a showing of good cause” 750 ILCS 5/501(a)(3)
Likewise, interim attorney’s fees are determined via summary hearing in an Illinois divorce or parentage case.
“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)
“[C]ourts frequently award attorney fees without discovery by the party charged with paying them and without holding evidentiary hearings.” RAINTREE HEALTH CARE v. Human Rights, 672 NE 2d 1136 – Ill: Supreme Court 1996
Despite the due process right to an evidentiary hearing in the face of disputed alleged facts, Illinois courts are granted great leeway to make decisions based on pleadings, affidavits or just their own judgment.
A purely evidence and even argument free decision by an Illinois court is called a “sua sponte” decision. They are quite common.
Sua sponte means a court has acted “of his or its own will or motion ; voluntarily; without prompting or suggestion.” Black’s Law Dictionary (10th ed. 2014)
Some Illinois courts “have approved the practice [of sua sponte decisions] under the rationale that a sua sponte disposition is proper under the inherent authority of a court to control its docket. Still others prohibit the practice entirely, reasoning that a petitioner must be given notice and the opportunity to respond (in the absence of any responsive pleading) before the trial court may rule.” People v. Vincent, 871 NE 2d 17 – Ill: Supreme Court 2007
Sua sponte decisions must be endured as long as they are procedural in nature. If a sua sponte decision is making any kind of finding fact (that is not in your favor), you must insist on an evidentiary hearing.
A finding of fact is “the conclusion reached by the court, arbitrators and is the determination of truth after consideration.” Black’s Law Dictionary (10th ed. 2014)
This requires the objecting attorney to distinguish between a judge’s ruling (the weighing of the facts admitted and/or agreed to) and the findings (the facts a judge has deemed to be true).
The distinction between the two is often hazy in both the minds of a judge and the lawyers and parties before them. But making the distinction after the fact is simple: just ask the judge, “is that a finding?”
If the judge admits to a finding without an evidentiary hearing proceeding that finding, you can politely remind them that they are not allowed to do so…but you better have a court reporter there writing down that admission if you want to force the judge to hear evidence they clearly would rather not spend an afternoon considering when they’ve already made up their mind.
Evidentiary hearings are the part of a divorce where you can not only tell your story but insist on your version of the events. So, you had better do the evidentiary hearing properly otherwise the judge will just do what they want to do…which usually is to move your case along and close your case out.