By Law Offices of Gretchen Schrader
If you are going through a divorce (or most civil proceedings), hopefully you will hear the term “prove-up”. A prove-up is the name of the proceeding that takes place when a case is settled and finalized. This article discusses a prove-up in a divorce proceeding.
- When does a prove-up occur?
A prove-up will take place once all issues have been settled, documents have been drafted to memorialize the agreement and the parties have signed these documents. How long it takes to settle a case can vary, depending on various factors. Some cases do not settle and those cases proceed to contested trial.
- Who is present at a prove-up?
Minimally, the following individuals will be present at a divorce prove-up:
- The petitioner (the person who filed the case).
- If represented, the petitioner’s attorney.
- Usually a court reporter (some counties utilize an audio recording system).
It is not uncommon that the respondent (the spouse of petitioner) is also present with his/her attorney. However, a prove-up can proceed if either of these individuals is not present as long as all the documents are signed by both parties and respondent has notice of the date/time/location of the prove-up.
- What is the purpose of a prove-up?
While the result of a prove-up is that a divorce is finalized, the purpose of the proceeding is to present the agreement(s) to the Judge who will confirm the following:
- That the Court has jurisdiction over both the parties and subject matter (the property and the minor children).
- That grounds exist for the divorce to proceed. As of January 1, 2016, the only grounds for divorce are irreconcilable differences.
- That the agreement(s) are fair, not unconscionable and in the best interests of the minor children.
- What happens at the prove-up?
When your case is called in Court, all parties and attorneys involved in the matter will step up before the Judge. The following are the usual next steps:
- The attorneys briefly introduce the case, themselves and their clients.
- The attorney(s) advise that the case has been resolved and inform the judge if there are minor children involved or if there is anything unusual the judge needs to know.
- The parties are asked to raise their right hand to swear or affirm to tell the truth.
- The petitioner is called as a witness and his/her attorney then asks a series of questions that will establish that the court has jurisdiction, that there are grounds for the divorce and will explain the terms of the settlement to the judge. This repeats if respondent is present and he/she will be asked questions about the settlement to confirm his/her understanding. (The attorneys can ask leading questions which means a majority of the questions asked will elicit yes/no responses).
- The judge, after hearing the testimony, determines that there is jurisdiction, that grounds exist and that the agreement(s) are fair, not unconscionable and are in the best interests of the minor children.
- Assuming the answers to the judge’s review as outlined in (E) above are in the affirmative, the divorce will be granted.
Depending on the number of issues and their complexity, a prove-up can last anywhere from 5-30 minutes on average.
- Are you divorced after the prove-up?
Most jurisdictions will enter the divorce immediately following the prove-up. As long as the Judge has signed your Judgment, the divorce has been granted. Some jurisdictions enter Judgment shortly following the prove-up.
- Why is there a court reporter?
The court reporter takes down the questions and answers and all discussions/findings by the judge. This information is then included in a transcript prepared by the court reporter and filed with the court. In the event an issue arises in the future about what happened on the day the prove-up took place, one can refer to the transcript to potentially address that issue.
- What is a 28 day order?
This term applies to Cook County divorce prove-ups. Once the transcript has been prepared by the court reporter, the parties are notified and the transcript must be filed with the court within 28 days from the day you appeared for the prove-up. The court reporter will charge a fee for the transcript and the cost will depend on how many pages it contains.
- Will there always be a Court Reporter?
No. Some jurisdictions such as Dupage County have an audio recording system. This system will record what everyone says and then a court reporter will later receive the recording and create a transcript. In Cook County, there are occasions when a court reporter is not available and the Judge will allow the case to proceed.
- Can you proceed to prove-up if your spouse’s whereabouts are unknown or your spouse has elected not to participate in the divorce case?
If your spouse’s whereabouts are unknown or your spouse has been served in the divorce but decides he/she does not want to participate, you can schedule a default prove-up after you follow some steps required by the court.
Since judges enjoy clearing their court calendar, a prove up is usually simple to schedule and most jurisdictions can accommodate having a prove-up a few weeks after all paperwork has been signed.