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What you need to know about Divorce

K. Contested Trial

In a small percentage of cases, despite everyone's best efforts, settlement cannot be reached. This may be due to the parties' unrealistic expectations, a dispute over the facts or the law, novel circumstance or issues, or one party's unwillingness to grant the other a divorce.

If it seems unlikely that your case will settle, or if your attorney determines that the imminency of trial is necessary to encourage the opponent's reconsideration of settlement, a skilled attorney will request a trial date.

After all pretrial discovery has been closed, your case will be certified for trial.

In Illinois, pretrial conferences are mandatory and serve to bring the attorneys and clients before the judge for the last attempt of settlement. The pretrial conference is not a trial, and no witnesses are called. If, at a pretrial conference, the parties are able to settle all matters in dispute, the resolution may be recited "on the record" before the judge and court reporter. Absent an agreement, all pretrial discovery is assigned a cut off date, and your case is assigned a trial date, at which time a contested trial shall commence with both parties, their witnesses and attorneys present.

If at this point all attempts at settlement have failed, we suggest that you and your attorney pursue one concerted strategy: TO WIN DECISIVELY!

On the day of trial, you will be offered a chair beside your attorney at the counsel table, which will be your place during the trial. Bring paper and a pen to make notes for yourself and your attorney. The Petitioner will put on their case first. Witnesses will be called and sworn and will testify. Each parties attorney will have the opportunity to question each witness as well as the Petitioner and Respondent.

If you are the Respondent in the case, you may be called for cross examination. The opposing attorney may request your testimony under oath before your own attorney questions you. You may also be called as the first witness. This is the usual procedure, so your attorney will assist and prepare you.

We suggest that the following suggestions will improve your appearance and testimony in court:

a) Tell the truth. Don't guess. Be sure you understand each question. As with depositions, listen and answer only the question. Never volunteer information. Never state a fact that you do not know.

b) Take your time and talk clearly and loudly enough for everyone to hear.

c) Be courteous. Don't argue with the other lawyer.

d) Don't be afraid. Look at the person asking the questions and just tell your story in your own words to the best of your ability.

e) Be sincere and direct. Keep to the point.

f) Do not be ashamed to tell the whole story. This is your day in court, the outcome of your case may well depend upon you.

Your lawyer will consult with you during the course of your trial. Tell your lawyer anything you believe they should know or may have missed. Be careful not to distract your lawyer, however. Particularly during testimony, your lawyer must concentrate totally on each question and answer, watch the reactions of the judge, witnesses and opposing counsel, and be ready to object instantly.

After your testimony, other witnesses may be called and subpoenaed records introduced to substantiate each party's position on support, custody, property, maintenance, responsibility for the payment of marital debts and other issues in dispute.

The trial may last a day or weeks, depending on the number of witnesses, records, issues at stake and complexity of the subject matter.

After all witnesses have been heard, the parties' attorneys argue the issues of the case and how they believe the court should rule. In some instances the attorneys may submit briefs that demonstrate how prevailing law should be applied to your case.

After both sides have rested, the judge will either render a decision immediately upon the close of all evidence or study it further and inform the lawyers and their clients of the day to return for the judge's ruling. While a ruling is usually rendered in a matter of days, it can occasionally take several weeks or months until the judge notifies the lawyers of the decision. Upon hearing the judge's decision, the attorneys may make arrangements to further clarify or argue points before the ruling becomes a formal judgment. Generally, the judge then asks the prevailing party to prepare a written Judgment for Dissolution of Marriage, which incorporates all of the judge's findings as to custody, support, maintenance and property, and to submit it to the court for signature and final entry.

If the non-prevailing party takes exception to the court's ruling, that party is free to seek an appeal from the trial court's decision, at the Appellate Court, within 30 days of the trial court's entry of final judgment. Generally, separate fee arrangements must be made with your attorney prior to their filing a Notice of Appeal.