Except for emergency matters, Illinois Courts have been largely closed since mid-March due to COVID-19 orders and restrictions, putting many families in limbo as they try to finalize their divorce proceedings. In an effort to allow couples to continue finalizing their divorces, many counties have transitioned to alternative methods for parties to finalize a divorce while the court system is shut down, including virtual divorces.
Illinois law mandates when parties to a divorce reach a settlement agreement, they must proceed to an in-person, oral prove-up before a Judge to finalize their divorce and have the judgment for dissolution entered. Once the agreement between the parties is reduced to writing, the parties appear before the judge in open court for what is commonly referred to as a “prove-up hearing.” The hearing is used to request approval by the Court of the parties agreement on all issues including property settlement, maintenance, parenting time and child support. At the hearing, the parties participate in brief, oral testimony to verify the settlement terms and that jurisdictional requirements are met.Both parties must consent to the agreement, the signatures on the agreement, waivers of maintenance, if applicable, and the full disclosure of assets and income. Upon completion of the oral testimony and entry of the proofs, the Judge will make the appropriate findings and enter the judgment for dissolution of marriage.Traditionally, at least one party had to be physically present in the courtroom for the prove-up hearing. Merely signing a settlement agreement with your spouse, does not make you divorced. A final judgment for dissolution of marriage must be entered by the Judge along with additional orders for child support and the splitting of retirement accounts.
While many county courts in Illinois remain closed, different counties are making adjustments to the in-person prove-up requirements to allow couples to finalize divorces.
Cook County is now allowing remote prove-ups by agreement of both parties. If the parties agree, they may submit an agreed order to the court requesting the prove-up be effectuated immediately along with all documents required for an in-person prove-up. Documents must be submitted to the Court via e-mail in advance of the prove-up along with a requested date and time for the prove-up and the proposed telephonic or audio transmitting means for the prove-up (i.e. conference call, Zoom, Skype.) The cost of securing the telephonic or audio transmitting means is borne by the party requesting the remote prove-up. The prove-up proceeds as a traditional in-person prove-up would, with the opportunity for testimony and cross examination by both parties.
Will County has established procedures for remote and virtual prove-ups while reduced Court operations are in effect due to COVID-19. To qualify for a virtual prove-up in Will County, both parties must be represented by an attorney and the parties, and their attorneys, must be present via two-way audio-video communication. To request a remote prove-up and entry of Judgment, the parties must file an agreed motion to set the case for prove-up.In the motion, the parties must certify they have reached a final agreement on all pending issues and have executed all necessary settlement documents.
Similar to Will County, beginning June 1, 2020, with limited exceptions, all Lake County Family Proceedings will be held remotely by Zoom, including prove-ups. Lake County has published a Zoom Instruction and Protocol Sheet with information and instructions for conducting matters via Zoom.
Until the resumption of normal courthouse activities, parties in DuPage County can submit prove-up documents electronically for approval and entry by Judges.Parties can submit their fully executed proposed marital settlement agreements and judgments for allocation of parental responsibilities to the Court for a Judge’s review. Allocation Judgments and Parenting Plans will be considered in the best interest of a minor child if signed by both parties, and therefore, will be entered by the Court. Marital settlement agreements should either reference child support and maintenance calculations are done pursuant to state statute or should specify the basis for deviation and waiver. The parties are also required to submit a notarized affidavit verifying all information that would usually be testified to at an oral prove-up. The parties are required to waive the right to cross examination of the other party and to waive physical presence in Court for prove-up proceedings. After the Judgment is entered by the Judge, the parties can submit agreed support withholding orders and/or agreed orders to split retirement assets to be entered by the Court.
McHenry County is allowing final judgments and agreements to be submitted to Judges via e-mail. The Judge will review the proposed documents and, if approved, the order will be entered and filed with the Clerk of Court.In addition to proposed judgments and agreements, each party must submit a notarized affidavit setting forth the specific agreements and facts that would ordinarily be testified to at the in- person oral hearing, including a willingness and desire that the Court approve the agreement and enter the judgment and a waiver of the physical appearance of both parties and waiving the right to cross-examine the opposing party.
Judges in all counties remind persons appearing in a remote format to behave as they would in a Courtroom. Parties and attorneys are reminded to dress appropriately for Court and be aware of your background and any excess noise in your remote setting.Participants should remain on mute until their time to speak and should avoid interrupting and speaking over other parties.
There are additional perks of not having to appear, in person, for a divorce prove-up. It saves the expense and time of appearing in Court, including traveling and parking downtown for parties in Cook County. Additionally, parties who have had a contentious ending to their relationship can avoid the emotional toll of an in-person confrontation at the final prove-up. Virtual proceedings eliminate much of the in-person theatrics that often take place in the courtroom.
A downside of a virtual prove-up is that attorneys and clients are not able to have off-the-record, private conversations. Where in an ordinary, in-person, prove-up an attorney can quietly lean over to ask their client a question or clarify an issue, during virtual proceedings, all discussion is on the record in the open proceeding for all to hear.
While many legal matters may still be better suited for traditional in-person court appearances and hearings, virtual, and other alternative hearing methods may serve to resolve matters more conveniently and expeditiously for clients. It remains to be seen if remote proceedings, and other non-traditional hearing methods remain when normal court operations resume throughout the state.