May 29, 2011

The Tragedy of the Overly Expensive Illinois Divorce

Divorces cost too much. I have practiced long enough in Illinois to understand that the process in the Illinois Court system of divorcing and reaching custody determinations takes too long, and costs the divorcing parties too much. My fees for divorce cases, including those that reach trial are always a fraction of that of my opponent's fees, and I work hard to keep costs down for my clients, but I still feel that the present system promotes delay, stress and cost for families. Why is this so, and how can all of us in the system work to change it?

First, the process itself is inefficient. Divorce cases are filed, and the courts set lengthy periods in which the opposing parties appear to set case management schedules. Then there is the endless march of discovery: Marital Interrogatories and lengthy and cumbersome Requests to Produce Documents, subpoenas of bank and credit card records that the parties won't produce voluntarily, depositions, motions, hearings over temporary issues: all of this activity which is billed to the client by the hour.

If the case can't settle, there is trial preparation. Finally, months later, the trial date, whereupon the judge sets a pretrial conference in chambers and the lawyers and judge work toward settlement with the judge's input. The lawyers then go out into the courtroom hallway and work with their clients under the pressure of the trial setting and try to settle the case.

Mark Baer's article, cited below, suggests mediation as an avenue for reaching earlier, cost effective settlement. As a mediator myself, I'm a proponent of mediation, but I disagree with Mr. Baer as to the efficacy of mediation in a complex or contested case. Mediation requires the absolute willingness on the part of both parties to reach settlement, and the parties need to have the emotional and logical balance to mediate. If one party is resistant, or confused, or feels stress, mediation tends to fail. My recommendation is the "Cooperative Divorce." I have trained in and taught cooperative divorce for years; it's an efficient, lower cost methodology of getting to resolution that does not involve active litigation but does allow for the intervention of the settlement judge, during the cooperative process, if needed.

Please contact my office at (630) 232-2400 if you'd like more information about my Cooperative Divorce strategies.

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May 26, 2011

DuPage County Divorce and Virtual Visitation

Virtual Visitation and Out of State Removal of Children

"Virtual visitation" is a term that is gaining relevance in Illinois divorces. It refers to using online video programs like Skype to create a visual and audio connection by which physically distant parents can connect online with their children.

A recent New York divorce case granted a mother's request for permission to move with her children to Florida, despite the fact that the children's father would continue to live in New York. As a condition of the removal order, the mother had to agree to allow the children to visit with their father via Skype, an Internet service that allows for live videoconferencing. The New York judge noted that economic conditions justified the move, as the parents' house was underwater, employment prospects were dim, and the mother had supportive family in Florida.

Comment: I have always favored "virtual visitation," and have written "Skype type" e-parenting language into parenting agreements, but only to allow for each parent to have enhanced and increased contact with their children when the children are not residential with them. I like the fact that Skype permits an enhanced experience for Dads and kids; far better than the typical evening phone call that most agreements provide for. I use these "Skype" clauses even when the children and parents live in the same city. However, I have never advocated that the use of Skype be a factor in permitting the removal of children to another state. Put simply, removal is a harsh and destructive outcome for many parents, usually Fathers, who must suffer the loss of local contact with their children after divorce. Fortunately, unlike some other states, Illinois law disfavors removal of children, but I can tell you that judges here do grant removal petitions.

If you are facing the possibility that your spouse may try to remove the children from Illinois out of state, on the pretext that there is family or friends in some other state, aggressively defending removal is critical. In my view, while "Skype" has been a boon to facilitating enhanced contact between nonresidential parents and children within Illinois, it should never be considered a substitute or factor in a removal case. Call my office for a consultation if you have concerns that your spouse may seek court permission to leave the state with the children during or after the divorce.

May 25, 2011

Kane County Divorce: The Art of Negotiated Settlements

No one wishes to spend a lot of money on their divorce. This statement has always been true for most families, and it's even more true today as Illinois families struggle with houses "under water," and employment opportunities lessened by the economic collapse. One good way for litigants to avoid spending a lot of money on their divorce is to make a sincere effort to avoid contested court litigation and a final trial on the divorce issues. Trials, as you might imagine, take a lot of attorney preparation time and actual court time. Trials are expensive.

To avoid trial the effort must be made to negotiate a settlement. Reaching settlement is desirable, but many people find that when they are dealing with issues of custody, spousal support, and division of property, that reaching settlements is difficult.

Through many years of experience as a trial lawyer, I have developed some key points for success through negotiating settlements. Here are a few:

1. Know your true goals and be aware of what you really need from the settlement.

2. Know your opposition. No one knows your spouse and their predispositions and deal points better than you. As your attorney, I know the case, the law, the judge's positions on certain matters, and the negotiating abilities of opposing counsel. We work together as partners to set goals and achieve them in negotiation.

3 Prepare for the negotiation... point by point. Be ready to have command of all necessary financial and child custody facts.

4 Anticipate reactions, objections and responses. Be ready with counter-proposals to address objections or stalemates in the negotiation.

5 Prepare options rather than ultimatums. Successful negotiations usually do not include ultimatums. When negotiating, it is important not to set "take it or leave it" positions, as these positions psychologically set a benchmark that the opposing party then uses to negotiate off of. The best deals are made gradually, with concessions structured into the negotiation, with the end goal deal points firmly in mind.

Some parties in divorce end up in a costly trial only because their lawyer could not find a means to conduct a successful negotiation. My goal with my clients is to use the art of negotiation to help them achieve their goals, while at the same time, saving them the cost and expenses of a trial, when possible.