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Before the Divorce Trial

The divorce process typically involves several court appearances.  Generally, you and your spouse will appear by your attorneys, i.e. you will not need to be personally present.  However, if temporary issues need to be litigated and the court needs to hear evidence, you may need to show up in person.  While your attorney should give you information regarding your specific court appearance, there are some more common parts of appearing in contested and non-contested divorce cases.

My divorce case is going to be settled “outside of court.” Will I have to appear in court to have the divorce finalized?

A 50 percent chance. A final divorce judgment can only be entered by a judge. The signing of a marital (divorce) settlement agreement does not divorce you. Only a divorce judgment signed by a judge can result in a divorce. The party initiating the divorce, the plaintiff, must appear in court and testify.

In some counties (not in McHenry County) the judge requires both parties to be in court for the final divorce hearing. Even if you are the defendant, however, your lawyer may require you to appear in court for the final hearing so you may be examined as to your understanding of the marital settlement agreement.

In the ordinary divorce, how many times will I be required to be in court?

Probably three.

  1. In many, if not in most divorce cases, there is a need to fix the financial arrangements between the parties (temporary child support, maybe temporary maintenance, maybe temporary attorney fees and sometimes child custody and visitation) during the pendency of the divorce proceedings. The court is petitioned and the parties appear before the court, unless the parties and their lawyers agree to what the temporary relief order will state. These hearings are in the morning and judges usually limit the hearing time to about 20 minutes. You will probably be called to testify. If an extended hearing is required, such as when the temporary custody of the children or visitation is contested, the hearing will be in the afternoon. But the time when contested hearings are held varies from county to county.
  2. The rules of court require both lawyers and clients to be present in court for a Pretrial Conference. The Pretrial Conference is an attempt to settle the case with the judge’s aid. It is conducted in the judge’s chambers with the lawyers, but the parties must be present (and wait in the hallway) in the event the judge makes a settlement recommendation so that the lawyers and their clients can discuss it and, if necessary, the judge will speak directly to the parties.
  3. The final divorce hearing at which, per the above, the plaintiff is required to appear, and the other party, the defendant, may be required to appear.

What happens at the final divorce hearing if there is a settlement agreement?

Your hearing, if your lawyer is efficient, will last about five minutes, but it may last as long as ten minutes. Your lawyer will tell you what time to appear in court. In McHenry County there are usually not more than ten divorce cases on the court’s call for final divorce hearings, referred to as “prove ups.” Your sequential place on the call depends on how early your lawyer or opposing counsel asked for your case to be heard.

You will be sitting in the back of the courtroom, the gallery. Your lawyer will be sitting towards the front of the courtroom at a table where lawyers sit. If you are not first on the call you will have an opportunity to listen and see the cases before you.

When the judge calls the name of your case your lawyer will proceed to stand in front of the judge and you will make your way from the gallery to stand beside your lawyer. Assuming you are the plaintiff, your lawyer will tell the judge, very briefly, what the case is about.

For example, he will state the number of children, the grounds for divorce and that there is a marital settlement agreement. After that the judge will swear you in. (You will take an oath or affirm to tell the truth.) You will then be examined by your lawyer.

The examination, in essence, consists of your lawyer having you testify as to what is written in the petition for dissolution of marriage, such as your name, address, occupation, your spouse’s name, occupation, names and ages of your children, grounds for divorce etc.

In addition your lawyer will have you testify as to the marital settlement agreement (MSA). Your lawyer will show you the MSA and ask you if that is your signature on it. The lawyer will then summarize to the judge the provisions of the MSA. Your lawyer will next turn to you and ask you if you understand the terms of the MSA.

If, as is usual, there is a waiver of maintenance (alimony) your lawyer will ask you if you understand what the waiver of maintenance means. The lawyer for your spouse may cross examine you. This cross examination is not meant to put you on the spot.

The other lawyer will merely ask you a few questions to verify that you understand the terms of the agreement, and if there is a waiver of maintenance, that you understand the consequences of the waiver of maintenance.

After the examination is finished your lawyer will hand the judge the divorce judgment the lawyer prepared and the judge will, after examining the MSA momentarily, sign it. You are then divorced. Gitlin & Busche, before the prove up, sends our client a letter spelling out exactly what will happen in court and we set forth in writing all the questions which will be orally asked of our client in court.

Your above comments were for the “ordinary” case. What about the hotly contested case?

In hotly contested cases the lawyers may be in court once a week and sometimes the clients also are in court with the lawyers. In one hotly contested case the issue was visitation by my client, the husband. The wife claimed that the husband should not be entitled to visitation because he sexually abused their daughter who was about two years old. The McHenry County firm which represented the wife had nine or ten lawyers. They presented one type of motion or another to the court on almost a daily basis. Several years after the litigation was over, a member of that firm told me that the very frequent court appearances were intended to try to keep me off balance. Ultimately, after a trial, the judge found that the mother did not prove the sexual abuse. The mother appealed but the appeal was dismissed.

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