Beyond Filing for Divorce: Is Family Law More Art Than Science?

Part of my guide to divorce in Illinois

Not long ago I stood in a courtroom and heard a judge say, from the bench, that in domestic relations we do not always do things by the book.

My client was sitting right behind me.

I had come in the way I always come in, which is by the book. Here is what the statute says. Here is the relief I am asking for. Here are the facts that apply to the statute. And in the space of about ninety seconds, my client watched the court suggest that the rules I had spent months explaining to her were more like guidelines.

That moment is the reason I titled my signature talk Beyond Filing for Divorce, and it is the honest answer to a question people ask me all the time: what am I actually paying you for? Anyone can file. Filing is a form and a fee. What you are paying for is everything that happens in the room afterward, in the space the statute leaves open. In family law, that space is enormous.

The hearing, and the step that got skipped

The hearing was on the other side's motion to modify child support. I have anonymized everything that could identify the case, but the shape of it matters, so here it is.

Modifying child support in Illinois has an order of operations. First, the party asking for the change has to show that there has been a substantial change in circumstances. Only once that is established does the court reach the second question, which is what the support should actually be: an amount set under the guidelines, or an amount based on the needs of the child.

The judge had gone straight to the second question. So I said, respectfully, that the court had not found a substantial change in circumstances, and had therefore skipped a step. They said that they believed there was one. They backtracked.

Then I said that they had not heard any of my evidence, and that I would like an evidentiary hearing. They told me that most hearings on these modifications are summary rather than evidentiary. I told them that the summary procedure they were describing lives in Section 501, which governs temporary relief, and that this motion had been brought under Section 510. Nothing in 510 turns a modification hearing into a summary proceeding.

That is when they said the line about not always doing things by the book.

I want to be fair to the court here, because this is not a story about a bad judge. Judges in domestic relations carry an enormous call. They move quickly because the volume demands it, and the pressure to resolve rather than to hear is real and constant. What happened in that courtroom was not corruption. It was compression.

But sit with it from my client's chair for a second. She had just heard a judge say that the rules bend. I spend a great deal of my time telling clients the opposite: that I cannot simply ask for whatever I want, that I am bound by the statute and by what the cases say, that this is not a free-for-all. And there was the court, telling her something else entirely.

Why the law leaves this much room

Here is the part that surprises people, and it is worth understanding before you are standing in it.

Trial judges are the ones in the room. They hear the witnesses, they watch the evidence come in, they form impressions that no transcript fully captures. Illinois, like most states, pays a great deal of deference to that. If you appropriately appeal a ruling, the appellate court is not considering the evidence; the trial court did that. In many cases, it is being asked whether the trial judge abused their discretion, which is a considerably harder thing to show. The usual answer is some version of: that judge was sitting there, and we were not.

That deference exists for good reasons. It also means something that people deserve to hear plainly. Decisions about your money, your home, and your children are made by one person, in one room, with a great deal of latitude, and the odds of having that revisited on appeal are not high.

"Think about what that actually means. You built an estate. You earned the money, you bought the house, you raised the children. And a great deal of what happens to all of it comes down to the discretion of one person you did not choose."

Among ourselves, family law attorneys sometimes call it the wild west. Attorneys who practice in other areas tell me they do not understand how we do this, that they could not do it themselves. I understand why. If you came up in a field where the answer is in the code, the amount of open ground here is unnerving.

What "more art than science" actually means

I want to be careful with the word art, because it can sound like improvisation, and it is not that. I am bound by statute. I cannot throw whatever I like at the wall and hope. Anyone who tells you family law is a free-for-all is either selling something or has not practiced in it.

The science is the part that is fixed. The statute, the case law, the arithmetic of the guidelines. That part you can learn, and you had better know it cold.

The art is everything the statute does not decide for you. Which facts to put in front of this judge, in this order, on this morning. Whether to insist on an evidentiary hearing, or whether insisting will cost you more than it gains. How to hold a court to a step it skipped without losing the room for the rest of the case. When a client's strongest position on paper is not the one that will actually serve her life in three years. None of that is written down anywhere, and none of it comes from having read the statute more recently than the person across the aisle.

It comes from having stood in a lot of rooms.

Beyond filing: what the work actually is

So when I say beyond filing, this is the work I mean.

Knowing the statute well enough to notice. The only reason that hearing went differently is that I knew which section the motion had been brought under, and which section the judge was describing. That is not brilliance. It is preparation. But it only helps you if your attorney is doing it in the moment, at volume, under time pressure, while the call is moving.

Holding the court to its own order of operations. Steps get skipped. Not maliciously, usually, but they get skipped. Somebody in that room has to be willing to say so out loud, politely, on the record, to a person who has a great deal of power over your case. That takes a particular kind of nerve and a working relationship with the court that survives you using it.

Building the record. This is the quiet one, and it is the one that matters most later. If you never asked for an evidentiary hearing, there is nothing for an appellate court to look at. The record you build on an ordinary Tuesday is the only thing that exists if the case ever goes up.

Keeping the ten thousand foot overview. You cannot give someone a practical outlook on a lot of moving parts if you have no perspective. Your case is not only a legal problem. It is a business, a house, a retirement account, a school calendar, and a family that has to keep functioning on the other side of this. An attorney without that view will win you a point that costs you a year.

Knowing what actually matters to you. Certain things matter enormously to people at certain times in their lives, and much less at others. Part of the work is figuring out, early, which of your positions are load-bearing and which ones you are holding out of anger. That conversation is worth more than most motions.

What this means when you are choosing representation

If the outcome of your case turns this heavily on judgment, then choosing who exercises that judgment is the most consequential decision you will make in the whole process. A few practical things follow from that.

Do not go off paper alone. Most attorneys are not going to have any of this on their professional page. Credentials tell you someone cleared a bar. They do not tell you how that person thinks, or what they do when a judge skips a step.

Do not go only on a recommendation. A friend's attorney was the right attorney for a different case, a different judge, and a different life. Use the recommendation as a starting point, not an answer.

Talk to the person yourself. This is the one I would not skip. I could write the best briefs in the world and still not be the right person for you. There has to be a fit. You and your attorney are not going to be friends, and your attorney is not your therapist, but there has to be relatability, and there has to be enough trust that you can say the frustrated, unreasonable thing out loud and get a straight answer back.

Use every channel, including the new ones. There is the internet, there are friends, there are legal referral services, there is word of mouth from other professionals. And now people write to an AI assistant and say they are looking for an attorney who handles a particular kind of matter. All of those are fine ways to build a list. None of them is a substitute for the conversation.

The bottom line

Family law is not as straightforward as people expect it to be. It is sometimes more of an art than a science, and I would rather you hear that from me at the beginning than discover it from a judge in the middle.

That is not a reason to be afraid of the process. It is a reason to be deliberate about who walks into the room with you. The statute will be the same whoever you hire. What changes is whether anyone notices the step that got skipped.

Stay in touch

Common questions about discretion in Illinois family law

What does it mean that family law is discretionary? It means that on many questions the statute sets the framework but leaves the decision to the trial judge. Two judges applying the same law to similar facts can reach different results, and both can be within their authority. That is why preparation, strategy, and the quality of your representation affect outcomes as much as they do.

Can a judge's decision in an Illinois family law case be appealed? Often yes, but the standard is demanding. If you appropriately appeal a ruling, the appellate court is not considering the evidence; the trial court did that. In many cases, it is being asked whether the trial judge abused their discretion, which is a considerably harder thing to show. Appellate courts give substantial deference to the judge who actually heard the evidence, so reversal is the exception.

What is a substantial change in circumstances? It is the threshold showing required before an Illinois court will modify an existing support order. The party seeking the change has to establish it first. Only after that does the court turn to what the modified amount should be.

What is the difference between a summary hearing and an evidentiary hearing? In a summary proceeding the court decides on the written filings and argument of counsel. In an evidentiary hearing, witnesses testify and exhibits are admitted, which creates a record. The distinction matters because the record is what an appellate court reviews later.

Does having a skilled family law attorney actually change the outcome? Where the law is discretionary, yes. Someone has to know which statute applies, insist on the right kind of hearing, build a record, and present the facts in the way that lands with the particular judge hearing the case. Those are judgment calls, and they are not evenly distributed.