The Law Office Of
ROBERT S. MEDANSKY

Over the past thirty plus years of my family law practice, one of the most common questions from clients has been "Why is this taking so long?” The second most commonly asked question has been "Why is this costing so much money?” I hope that this section will help to explain and answer these questions. 



Often, prior to or shortly after the filing of a Petition for Dissolution of Marriage, one spouse or the other is left in a situation of distress. That distress may include lack of financial resources, lack of access to your home or records, or as is too often the case, lack of access to your children. In an effort to resolve those issues, the court has established rules, procedures, and practices designed to relieve divorce litigants temporary needs. For example, let's presume that John Doe has been removed from his residence and his estranged spouse, Jane Doe has denied him access to the parties' two minor children. Let us further presume that John Doe is the sole income producer for the household. Because it took two weeks to serve Jane Doe with John Doe's Petition for Dissolution of Marriage, and because Jane Doe had thirty days to file an Appearance and Answer, John Doe has been denied access to his children for six weeks. In response to that unfortunate situation, John Doe's attorney filed a Petition for Temporary and Permanent allocation of parental responsibilities (parenting time with the children and decision making responsibilities regarding health, education, religious and cultural issues and extracurricular activities). Because of the court's schedule, an initial hearing date for that petition was set fourteen days later. 



The Illinois Rules of Court do not provide for automatic responsive pleadings; therefore, the first court date, which the attorney's must appear, most likely will not produce any situation relieving result. Rather, the court will set a briefing schedule granting the other party time to file a responsive pleading to John Doe's temporary petition, and the court may then set a hearing or status date for the next court appearance. Obviously, it is John Doe's desire to go to court as soon as possible so that he can see his children; however, the ultimate decision lies with the judge. Typically then, if the court sets a hearing date that proceeding will probably be scheduled at least thirty to sixty days later. 



In response, Jane Doe's attorney realized that John Doe's temporary petition does not provide for the support of the family. Jane Doe's attorney then files a petition seeking temporary child support and spousal maintenance. That petition may also request additional contributions towards extra educational expenses, and contributions towards the family obligations such as mortgage, utilities, etc. That petition will then be noticed for an initial hearing and as with John Doe's petition; the initial hearing will probably result in an order establishing a briefing schedule and then setting the petition for an evidentiary hearing. 



To further complicate the situation, the court, on its own motion or upon request from either party may order the litigants to participate in mediation, which is mandatory in most counties on the issues of parental responsibilities. If the parties are ordered to mediation, that process most likely will take three to four months, however the court can order interim parenting time if neither parent poses a serious endangerment to the children. (Mediation is a process whereby a third party, most often Court appointed, brings the divorcing litigants together with the hope and effort to reach agreements.) In the meantime, pending mediation results, the court may delay a hearing on any temporary petition for parental responsibilities. If the litigants have skilled counsel, though, the court will be prompted to enter an interim visitation and child support order.

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In answer to the first question set forth in the beginning of this section, the process takes a long period of time because of the volume of litigants passing through the judicial system and because of the availability of the court’s time. Additionally, the process moves slowly because the Illinois Rules of Court fail to provide specific pleading time parameters that would speed up the process. In answer to second question, the process is expensive because John Doe and Jane Doe along with their attorneys will probably appear in court four to six times before their petitions for temporary orders are ever considered by the Court. However, there are strategic methods available when utilized by knowledgeable and skilled attorneys which could speed up the process and eliminate a lot of stress.

 

Discovery

After the respondent spouse files their Appearance and Answer to the Petition for Dissolution of Marriage, the parties are free to conduct discovery. Discovery is a process controlled by the Illinois Rules of Court, which is designed to compel the exchange of information. That information typically consists of documentation relating to medical histories, financial affairs, names of witnesses, and lists of exhibits, all of which would be utilized at the time of trial. Again, though, the exchange of this information is often required even before the parties can pursue, or intelligently pursue temporary orders. Then, as a litigant who wishes to move forward with the divorce proceeding, you may be faced with additional delays that are justifiably provided for in the Rules of Court. Keep in mind that attorneys, as a rule, must pursue certain basic discovery in order to protect their client's interests.   



Strategically, as a litigant responding to discovery, the more organized you remain and the quicker you respond to the opposing party's discovery demands the better your position will be to aggressively demand responses from the opposing party. In short, do not wait until the 28th day to consider your responses to outstanding discovery. The work in preparing answers to written discovery does not end when you provide the materials to your attorney. Your attorney must then review your answers and formally prepare the response. If you delay long enough, the opposing party will be in a position to file a motion to compel your answer or file a motion for sanctions against you for failing to respond to outstanding discovery. That process will cause further delays in your litigation, increase attorneys' fees, and potentially place you in a position of disadvantage.

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The typical methods of discovery include:



Written Interrogatories 

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Interrogatories are written questions, which range from a wide variety of subject matters including finance, the identification of witnesses, exhibits and your positions concerning parental responsibilities over children. From the date of service of Interrogatories, the responding party has 28 days to submit their answers.



Requests to Produce Documents and/or other Tangible Things



During the course of your litigation, you may also serve upon the opposing party Requests to Produce documents and/or other tangible things. Again 28 days is provided to gather the requested records or things and serve responses to that discovery device. 



Request to Admit Facts and/or the Authenticity of Documents



Another tool often utilized by attorneys is called a Request to Admit Facts and/or the Authenticity of Documents. This device may request that you admit or deny the authenticity of a letter, a deed, or some other tangible document. The Request to Admit may also ask you to admit or deny the accuracy of specific facts such as "On or about May 1, 2000 Jane Doe signed a Waiver of Homestead for the residence located at 2101 North Circle Drive." If you fail to respond timely to a Request to Admit, all of the facts set forth in the request will be deemed admitted. The consequence of that failure could be devastating to your case. Therefore, timely responses are essential. 



Subpoena Duces Tecum and Subpoena to Appear



In the event a party to the divorce proceeding denies having access to records, or if the other party does not believe records are being fully disclosed, a subpoena duces tecum ( for records only) can be issued and served upon any third party believed to maintain those record. The subpoena is issued by the clerk of court, and served upon a non-party by the Sheriff of the county where that person or entity resides.

 

If the subpoenaed party fails to produce the demanded records as provided by the subpoena, they are then subject to being held in contempt of court. Obviously, enforcing a subpoena creates more litigation expense and delay.

A subpoena can also be issued and served upon a non-party to the divorce for the purpose of compelling their appearance for deposition or appearance for court hearings. If the subpoenaed person ignores the subpoena, the Court upon request can issue an order directing the Sheriff to seize that person and bring him/her to court. Other Sanctions may also be imposed such as a finding of contempt, monetary sanction or incarceration.



Depositions 



The final most commonly used method of discovery is called Deposition. Under Illinois law, two (2) types of deposition may be taken. The first is a Discovery Deposition that is designed to obtain information regarding a party's personal affairs and positions concerning the issues involved in the divorce. Although under certain circumstances a discovery deposition may be used during the course of a trial, its purpose is not intended as substitute testimony. Rather, the discovery deposition is designed to establish a litigant's position regarding the facts involved in any particular case and holding that litigant to those facts and those positions during trial. If a litigant changes their position during the course of a trial and those changes are inconsistent with the deposition testimony previously given, the opposing party will be in a position to impeach that witness. Therefore, proper preparation for depositions is necessary. Again taking into account the litigants' schedules and the attorneys' schedules, it could take months to organize any particular deposition. Further, prior to taking a party's deposition, the opposing party may first require the receipt of answers to outstanding written discovery. Therefore, the possibilities for further delays are endless.



The second type of deposition provided for under Illinois law is an Evidentiary Deposition. That process requires the parties to prepare questions and receive answers that comply with the Illinois Rules of Evidence, unlike a Discovery Deposition where the rules of evidence do not apply and the strict procedures do not have to be accommodated. Typically, the Evidentiary Deposition is utilized for the purpose of replacement trial testimony. Often, it is more economical to take the Evidentiary Deposition of a doctor or mental health provider rather than bringing that individual into court and incurring the expenses associated with the delays, which routinely occur during the course of a trial, or hearing. Evidentiary Depositions may be noticed for any party or third party that is perceived to provide testimony during the course of a trial. If out-of-state witnesses are involved in a particular case, it tends to offer a valuable alternative to bringing live witnesses into court.



During the course of divorce litigation, depending upon the issues involved, whether they are financial or relating to children, discovery abuses often occur and create serious delay and expense. However, if a court is made aware of ongoing bad faith abuses of discovery, the abusing party could be subject to devastating sanctions.

 

Expert Witnesses

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During the course any divorce proceeding, the need for expert witnesses may arise. Concerning the financial aspects of a divorce proceeding, it may be necessary to hire the services of an accountant to cipher through financial documentation, the retention of a business valuator for the purpose of valuing a closely held enterprise, or the hiring of an actuary for the purpose of evaluating the array of retirement programs provided though employment. The hiring of financial experts relates directly to the discovery process previously described. Obviously, the gathering of financial records is necessary to perform these expert functions. Additionally, if a litigant owns interests in businesses involving third parties, serious disputes could arise relating to the disclosure of financial materials. These issues, without a doubt, can cause serious additional delays in divorce litigation not including the time necessary to perform the expert functions themselves. 



On the same note, it may become necessary to retain the services of experts for the purpose of making determinations concerning non-financial issues involved in a divorce proceeding. Those issues include, parental responsibilities, access to children and the mental, physical and emotional stability of either party to the divorce proceeding.

 

Under Illinois law, there are two (2) methods of involving outside experts in the litigation. The first method is for a party to request the appointment of a particular medical doctor or mental health care provider to perform evaluation of the opposing party. If a party's physical or mental health makes them incapable or undesirable to maintain parental responsibilities of the parties' children or those conditions necessitate the restriction or limitation of access to the children, that expert would make the determination. The second method of involving a mental health care provider or medical doctor is to request the court independently appoint an individual for the purpose of evaluating the best interests of the children, evaluating the parties' mental and physical conditions, and/or making recommendations to the court relating to the parental responsibilities and access issues.  

 

Those processes are time and cost consuming, but routinely utilized by the Illinois courts. If various experts are appointed in your divorce, their conclusions, fact gathering methods and recommendations are then subject to additional discovery. Consequently, the information gathering process continues throughout the divorce proceeding and again causes additional delays and expense in the conclusion of the divorce process.

 

Finally, if the court deems it necessary, upon its own motion, or upon request of either party, the court may appoint a guardian ad litem or child representative for the children. That individual essentially acts as attorney for the children, gathers facts on behalf of the children and takes position with the court for the children as it relates to parental responsibilities and access issues.



In spite of the use of the various experts listed, and the recommendations which may be made by a guardian ad litem or child's representative, the judge has the ultimate decision making power in every divorce proceeding. There is no individual who can make recommendations to the court with the expectation that the court will or must abide by those opinions. Your trial judge has the final say and it is not uncommon for a court to disregard and/or modify recommendations submitted by expert witnesses if the facts of your case so warrant.

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The Status Hearing

Illinois, unlike many other jurisdictions, monitors the progress of divorce litigation by requiring both parties to routinely appear in court for status hearings. After you initially set your case for a court appearance, the judge will require periodic additional court appearances to determine the status of the litigation. These status hearing can be as frequent as every thirty (30) days over a divorce that could conceivably take one (1) to two (2) years to complete. Obviously, those appearances become costly and time consuming. However, because of the large volume of cases passing through the Illinois judicial system on a daily basis, the Illinois courts require the parties to appear and report the status of pending motions and petitions, the status of discovery, the status of expert evaluations, and eventually the status of the parties ability to proceed to trial if necessary. 

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Most often, the parties to the litigation are not required to appear in court for status hearings. If they were required, to their frustration, they would find those hearings to be time consuming, due to the large volume of cases set on the Court's daily calendar, and relatively nonproductive. However, these hearing are required by our judicial process in order to avoid cases sitting stagnant for any lengthy period of time.