11. Settlement. Ninety-five percent of all cases are settled and do not go to contested trial. The statistics for settlement of child custody cases are not as good. The illustrated case of Mary and John ends in a settlement, but the results of the settlement will be (because they usually are) almost the same as the results of a trial. The advice your lawyer gives regarding settlements is based on the lawyer’s knowledge of the law and the knowledge of how the judge is going to rule. A settlement should not be considered by your lawyer until the lawyer knows and understands all of the financial and child custody facts. The settlement is usually negotiated directly between the lawyers. Sometimes the lawyers decide to hold a “four-way settlement conference,” that is a negotiating session in which both the lawyers and clients participate face to face. I do not encourage four-way conferences. I believe in most cases they are counter-productive, rather than productive because, for one thing, some lawyers “showboat” at these conferences.
12. Court Conducted Settlement Conference. If the case is not sooner settled, the judge conducts a pre-trial settlement conference. At this conference each lawyer submits to the judge a memorandum telling the judge all the essential facts of the case, proposing a settlement and attempting a justification for the proposed settlement based on the facts of the case and the law applicable to the case. The parties and their lawyers are in court for the settlement conference, but usually only the lawyers go in the judge’s chambers (office) for the settlement conference. The lawyers each present their position and arguments to the judge. After this the judge will generally have a fair assessment of the facts of the case and the applicable law and the judge will usually tell the lawyers something to the effect of, “If this case goes to trial and the facts at the trial come out as I now understand the facts to be, then my ruling is likely to be . . .” The judge’s pre-trial conference recommendations for settlement should be the blueprint for a settlement agreement unless your lawyer believes the judge misapprehended the facts, or misunderstood the law, and that at trial the lawyer can convince the judge to a different position, but going to trial against a judge’s recommendation is going to trial with the odds against you.
13. Settlement based on child custody evaluation. At number 9 I commented on custody evaluations. They are usually performed by a mental health professional appointed by the judge. The evaluator, or investigator, submits a written report. The written report will contain the facts pertinent to child custody issues, which is based on what is in the best interest of the children, and will usually, but not always, include a psychological assessment of the parties which is made on the basis of a clinical interview by a psychologist and psychological testing. In a close case, the psychological evaluations will tip the scales. Usually, but not always, the evaluator/investigator will make a custody recommendation to the judge. The judge is not required to follow the recommendation, but in the majority of the cases the judge does, so the recommendation of a custody evaluator should be given considerable weight in deciding whether to settle the custody issue, or go to trial. A sophisticated divorce lawyer will fully explain the evaluation/investigation process and prepare the client for this procedure. In this case, as in all cases, knowledge is strength.
14. Finalizing the settlement. Settlement is finalized by a written “Marital Settlement Agreement”. In this case we will assume that Mary’s attorney makes the first draft of the settlement agreement which, after Mary’s approval, is presented to John’s lawyer, but it could well have been that it was John’s lawyer who wrote the first draft. It will probably take Mary’s lawyer more than one draft of the proposed agreement for it to contain all of the terms that are satisfactory to Mary and her lawyer. That draft of the marital settlement agreement will then be delivered to John’s lawyer and John and his lawyer will review the agreement and in most likelihood will ask for changes to be made so that the proposed agreement is acceptable to John. This is part of the negotiations and is a back and forth procedure that may take some time before we have both Mary’s and John’s signatures on the agreement.
15. Finalizing – the prove up. Once the marital settlement agreement is signed it is merely a matter of docketing the final hearing before your judge. The hearing can usually be scheduled within about a week of the time the lawyer calls the courthouse to schedule the hearing. Usually only the plaintiff (in this case Mary) is required to attend the hearing and testify. Before the divorce prove up Mary’s lawyer should inform her of the questions that will be asked of her. The actual hearing (the time Mary will testify) will only last about five minutes, but since there will be other divorces being finalized in the same time frame, Mary should allow about an hour for the court appearance. The questions to be asked of Mary will, first, be in order to prove the matters stated in the petition for divorce, which includes names and identities of the parties, the grounds for the divorce etc. The questions will also deal with Mary’s understanding of the terms of the marital settlement agreement. As soon as Mary finishes her testimony, her lawyer will present to the judge a proposed judgment of divorce, which the judge will sign. Mary is then divorced and the marital settlement agreement is made part of the judgment.
For more information visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.
H. Joseph Gitlin covers the practice of family law in Illinois. Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions. Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021. Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases