November 29, 2008

Shared Parenting Laws: Will Illinois Ever Consider Shared Parenting?

The State Of Iowa has on its books a Shared Parenting statute. which establishes shared parenting as the presumptively preferred means of custody in Iowa.

Here in Illinois, litigants often times fight custody "wars" over which parent will "win" the custody of the child(ren). As a lawyer and aggressive advocate for my clients, I enjoy a strongly contested case, but the fight over the custody of children is a battle that often should not be fought. Divorce creates enormous personal stresses in families, and the impact of divorce on children is well known. Having parents fight wars for the time with the children seems to me unhealthy, unnecessarily painful, and uselessly costly to families.

There are cases where joint physical custody is not appropriate. The Courts are well prepared to determine these cases. However, it would be a welcome event to see Illinois evolve out of the custody "dark ages," into a more enlightened view toward statutory shared parenting. This would take the fight out of the parenting part of the case.

Below is a proposed Federal statute for shared parenting, from an Iowa shared parenting advocacy group:

Title of Bill:
An Act Relating to Physical Care of Children in Domestic Relations
Be It Enacted By The United States Congress

1 Preamble: An Act relating to joint physical care of children in domestic relations and
2 establishing a uniform federal law creating a rebuttable presumption that a request for joint
3 physical care is in the best interest of the child.
5 SECTION 1: This act may be cited as, "Shared Parenting bill."
7 SECTION 2: In any domestic relations proceeding, the states shall award joint physical
8 care to both joint custodial parents upon the request of either parent during the proceedings
9 on the initial dissolution petition or during the proceedings on a modification of the original
10 custody order.
12 SECTION 3: A rebuttable presumption exists that a request for joint physical care by either
13 parent is in the best interest of the child, the burden of proof to rebut the presumption rests
14 on the party denying that joint physical care is in the best interest of the child, and such
15 party shall demonstrate that joint physical care is not in the best interest of the child by clear
16 and convincing evidence.

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November 20, 2008

Nine Questions to be Asked in Choosing your Illinois Divorce Lawyer

Selecting the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, competent, and who only handles family law and divorce cases. Seek someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends and family members, but in the end, trust your own judgment.

Schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. You divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

During the initial consultation with the potential lawyer, you may consider asking him the following 9 questions:

1. Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Of course not. Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 90-100% of their practice, go elsewhere. Determine the lawyer's involvement as committee member or chair of a Family Law Committee or ADR Committee.

2. What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask.

3. What other costs can I expect? In addition to lawyer’s fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them.

4. Will you send me periodic itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your account. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later. The only statements you should expect to receive is for costs that have incurred on your case (such as for subpoena fees, filing fees, etc.)

5. Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have.

6. Who else will be working on my case? Other paralegals, and/or staff members will sometimes perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for paralegals should be much lower than that of the primary attorney on the case.

7. What efforts will you make to try to settle my case? The majority of divorce cases settle. A few are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Many settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse’s lawyer to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about collaborative divorce and mediation. Collaborative and Cooperative Divorce are becoming more prevalent in divorce cases. These cutting edge approaches save time, stress, and money.

8. What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer’s office to do it.

9. Do you communicate personally with your clients to assess their needs and measure their satisfaction? All other factors being equal, a lawyer that surveys his clients to determine their needs and satisfaction is likely to render better service to his clients as he is more attuned to their feedback.

As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

Once you have found a good lawyer, remember that he or she works for you. Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as the recommendations. However, in the end, you are the one who makes the decisions. Your case is unique to your family. Hire a lawyer that will "partner" with you in achieving the best possible result.

November 20, 2008

Collaborative Divorce: It Works for the Material Girl

Madonna and Guy Ritchie could be the first high-profile couple to divorce collaborative-style.

The new, fast-track and non-confrontational way of reaching arrangements over money and children on divorce has just won senior judicial backing - in the week that the couple’s split became public knowledge.

Collaborative law does not sound buzzy. But it is the in-method of reaching divorce agreements, with the benefits of speed, huge cost savings and, above all, minimum acrimony.

Last week a couple of hundred lawyers gathered to celebrate the fifth year since American-style collaborative law was introduced in the UK. In 2003, four London lawyers were among a handful who had qualified in the new method; now there are more than 1,250 and more than 300 in London. This year has also seen the appointment of London’s first “collaborative” silk: Tim Amos, QC.

What is it? It aims to help couples reach agreement out of court, avoiding the risk of the public mud-slinging and battles epitomised in the split between Sir Paul McCartney and Heather Mills.

Settlements are reached in four-way, face-to-face talks between the parties and their lawyers. There is an incentive to agree: if the talks fail, then new lawyers have to be instructed for court proceedings - at extra cost.

The couple draws up a consent order which is then agreed by the court. This process used to take three to four months. But last week , Mr Justice Coleridge, a senior family judge, announced a fast-track procedure whereby such orders could now be approved within a couple of days.

He said that If every aspect of the case had been agreed, and the hearing before a judge for approving the order would not take longer than ten minutes, all that was needed was a day’s notice to the court and a chance for the judge to read the papers overnight.

The fast-track initiative, which has the backing of Sir Mark Potter, president of the Family Division, comes about after an un-named couple had asked for urgent approval of their settlement because one was about to move to the United States with the children.

At first, Mr Justice Coleridge said that he thought the application rather cheeky. But he added: “However, I am, as is well-known, a pussycat, and agreed to hear the application for approval as the first in the list on the following day.”

The key benefits of the new “good divorce” method are that it is non-adversarial; solutions can be tailormade and flexible; clients have control of the pace; experts (accountants, financial advisers, therapists or counsellors) can be brought in and work with the couples; and privacy is preserved.

He did sound one note of caution, however. Lawyers needed to be “acutely sensitive” to the process failing so that “costs are not run up first by one process and then, after the trial has hit the buffers, by the old-fashioned scheme”.

Isobel Robson, partner and head of family at Andrew Jackson, the Yorkshire law firm, said there was a big take-up in the new method.

“I believe that collaborative law is the most exciting development in family law in my 24 years of practice. Clients love it; they regard the process as direct, clear and amicable whilst avoiding the expenses and latent aggression of the court process.”

Cost savings were considerable too, she said. “I have dealt with collaborative cases with assets in the millions and costs of under £10,000 - perhaps only 10 per cent or less of the costs for contest cases with the same assets.”

The take-up among lawyers is still patchy, however, with some hugely successful pockets in the regions where lawyers have embraced the new method, but a slower take-up in other areas, including London.

“The clients embrace the concept that the whole focus of their case is on settling - rather than fighting,” she said.

Suzanne Kingston, head of family at Dawsons LLP, said that for Madonna and Guy Ritchie, the privacy would be a big incentive. The settlement could be reached “in one of the offices of the solicitors rather than in court”.

So it’s down to Fiona Shackleton (for Madonna) and (Lady) Helen Ward, for Ritchie. The couple are said to want a deal by Christmas. Using this route, they could well do it.

Source: London Times

November 20, 2008

Mediation v. Collaborative Divorce in Illinois

In mediation, there is one trained 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. Mediation is a facilitative process, and it works best when the parties have a strong desire to find middle ground solutions, and do not have strong disputed issues.

Collaborative Law was designed to deal more effectively with conflicts in divorce, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the parties' own attorneys dedicated to the collaborative process. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive, and on course to settlement.