What happens at a prove-up hearing? At a prove-up hearing for child custody, you can expect a more relaxed atmosphere than what surrounds a contentious trial. The petitioner (the person who filed for divorce) is required to attend. The respondent or the respondent’s attorney must also appear. Prove-up hearings are non-adversarial and not overly strict about the rules of evidence. The parties to the divorce and custody case present their parenting agreement, marital settlement agreement, child support calculation (if required), certificates of completion of caring and coping class (if required), and a certificate of dissolution. If everything goes well, the judge likely finalizes the divorce at the end of the hearing.
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What Is a Prove-Up Hearing?
One of the benefits of an uncontested divorce is a child custody prove-up hearing that should go smoothly without much, if any, conflict. If child custody has been the primary or only focus of the divorce case, then most of the talk at the prove-up hearing may center on it. Even if custody has not been a significant issue in the divorce, the lawyers and judge may spend time ensuring that the parenting plan is in the children’s best interests and that the parents understand the ramifications of their custody agreement.
Prove-ups are specific hearings in which divorcing parties “prove-up” (or present) their petition, marital settlement agreement, and parenting plan. The judge follows Illinois laws when deciding whether to approve or disapprove the paperwork. Absent glaring errors or obviously skewed and unreasonable agreements, a judge likely will approve all the documents and finalize the divorce.
It is also possible for one or both of the parties to change their minds during the prove-up hearing for child custody. In this situation, the parties would need to further work out their issues outside of court. As long as a judge has not yet signed the marriage dissolution, the parents can change their minds without going through the procedures required after a divorce has been approved.
The judge typically hears both parties if both attend. First, though, their lawyers introduce themselves and their clients. The lawyers explain that agreements have been reached. Next, both parties briefly testify about their child custody decisions, their decisions on asset division, and other relevant issues. This testimony typically takes the form of, “yes,” and “no,” answers to attorney questions. The judge checks that the parties understand the outcomes of their decisions and that their parenting plan is reasonable.
If only the petitioner attends, the judge hears testimony from that person. The respondent’s attorney, if there is one, should be present to represent the interests of his or her client. The hearing takes place in open court, so the parties are allowed to bring witnesses if they want. Typically, though, the only people attending are the two parties and their lawyers.
If the respondent refuses to attend or cannot be reached, the child custody prove-up hearing can still proceed. The petitioner does need to show that he or she made good-faith efforts to let the respondent know about the prove-up hearing. This type of hearing is called a “default prove-up,” not an “uncontested prove-up.”
It is not required for either party to have a family law attorney. If one or both do not have representation, they speak for themselves at the hearing. The judge may be more involved with questions, too.
It is a good idea to speak with an attorney, even briefly, at some time before a prove-up hearing for child custody. This holds even if the divorce is going smoothly. An attorney will help make sure everything is in order. Even one seemingly small custody matter or disagreement or piece of erroneous or missing paperwork can derail things and incur more court fees and costs for you.
Prior to the prove-up date, both parties sign the marital settlement agreement. It details the distribution and apportionment of assets, property, and debts. When minor children are involved in a divorce, both parties sign a parenting allocation judgment and the judge asks more questions about custody and parental responsibilities at the prove-up hearing.
You may wonder, “what is an uncontested divorce, and what are prove-up hearings for uncontested divorces?” First, an uncontested divorce is where both parties agree on all the issues, including child custody, asset, and debt division, and spousal maintenance. A divorce can be uncontested from the beginning or become uncontested over time due to the parties resolving their differences themselves or using third parties.
Second, prove-up hearings are for uncontested divorces, although, as touched on earlier, a “default prove-up” might occur if the respondent cannot be contacted. Both parties do reserve the right to change their minds on any issue during the hearing. Most of the time, prove-up hearings remain smooth but can turn contentious if one of the parties has a change of heart or hidden information comes to light. Even a facial expression taken the wrong way potentially can spur a conflict in the middle of a prove-up hearing and send both parties back to the drawing board.
What Happens at a Prove-Up Hearing
A prove up hearing can last from ten to 30 minutes from the time it officially starts. However, you could be in the courthouse (not the hearing itself per se) for as long as an hour or so. Court schedules can run behind and not all the necessary parties may arrive on time. Keep that in mind when you take time out of your day to attend.
You can expect your child custody prove-up hearing to involve testimony and custody-related terms specific to your situation. These terms might include parenting plans, parental responsibilities, child support, visitation, and even morality clauses. For example, morality clauses will be discussed if you or your spouse have been concerned about your children’s exposure to dating partners, bad influences, substances, offensive language, and other things.
An Illinois parenting agreement can go by several names, including Allocation of Parental Responsibilities and Parenting Plan, and Allocation Judgment. The agreement consists of two parts. One is a specific parenting time schedule and the other covers decision-making responsibilities.
Illinois, by default, prefers shared parenting time, but parents have a lot of leeway in deciding between themselves and how to split their time with the children. It does not have to be 50-50 and often is not.
However, the further from the 50-50 norm a plan is, the more questions lawyers and a judge may ask about it. They want to verify that both parties willingly made the agreement and are aware of the potential ramifications. Since joint custody or shared decision-making is the preferred default, it does not get as much scrutiny and questioning.
Testifying at a Prove-Up Hearing
Clients stand next to their attorneys during a prove up hearing and face the judge. This approach keeps any possible negative communication and facial expressions between the parties to a minimum as they testify.
The petitioner goes first if both parties are present. The respondent goes second. Each party’s lawyer asks the questions. Judges may ask follow-up questions sometimes. Usually, the divorce is finalized at the end of the questioning.
- Speak loudly and clearly, especially so the court reporter or audio recording system can make the transcript as accurate as possible.
- State your name and respond to your attorney’s questions.
- Expect simple, clear questions.
- Expect questions that touch on parenting responsibilities, child custody, allocation judgment, and the division of assets and debts, among other things.
Your lawyer will tell you before the hearing what types of questions to expect. Common examples include, “Have you lived in this state for at least 90 days preceding the filing of this case?” and “Did you freely and voluntarily enter into these agreements?”
As far as child custody issues go, your lawyer or the judge might ask questions to ensure the parenting plan is in the children’s best interests and that you are aware child support amounts deviate from statutory guidelines and why (if applicable).
If the parenting plan seems to be heavily in favor of one parent, be prepared to explain to the judge why it is in the child’s best interests. You may need to touch on areas such as the traveling distances between the parent’s homes, the location of the child’s school, the child’s extracurriculars, the parent’s work schedules, and the accommodations the child has in each parent’s home. You may also need to discuss vacation and holiday schedules.
If both parties attend the prove-up hearing, then both sign the dissolution of marriage decree. The divorce is still official if the respondent does not attend, though. Attorneys then work on setting up income withholding for child support and maintenance and other odds and ends. In a few days, you should get all the paperwork. You can request a transcript of the hearing, but may not be able to receive it for about a month.
