Illinois Divorce Lawyer Blog

Now that 2010 has arrived people who have been considering filing for divorce are starting to take action. Once the decision is made to file for divorce, an important decision must also be made as to how the divorce will be conducted.

Are you looking for a high cost, high conflict divorce? Well, these kinds of divorces are easy to engineer. They require anger, retribution, and a desire to burn through money without regard to future consequences.

Are you looking for a better, less costly, lower stress collaborative experience? Then consider an initial consultation with my office to discuss my approach to cooperative divorce and collaborative practice.

In cooperative and collaborative divorce practice, the traditional approach of bargaining from a specific position, backed by threats of litigation and court hearings, is replaced by an approach that settles cases mindfully, practically, and respectfully. The approach meets the needs of both parties and the children, and still involves legal counsel, but eliminates the threat or fear of high conflict court hearings at any stage.

This cooperative process is based on a process in which both parties and their attorneys agree that the attorneys will not go to court, except for the final prove up of the case. The key ingredient of cooperative divorce is that the negotiation between the parties takes place in four-way meetings where both parties and their attorneys are present.

The cooperative approach to divorce is based on three principles:

• An agreement not to go to court, except to obtain guidance from the judge (pretrial conferences) and to "prove up" the agreements at the end of the case.
• An open exchange of financial information by both spouses.
• A solution that takes into account the highest needs and priorities of each divorcing parent and the children.

The key element of this process is a commitment by the parties to work toward a negotiated settlement in a structured, non-adversarial setting that puts a premium on cooperation and cost savings, rather than resorting to high cost, high stress litigation.

Some cases need the court system. Cases involving domestic violence, dissipation of marital assets, and other emergency matters will require immediate court action and the intervention of the judge. My firm is very aggressive when court litigation is required. However, for many divorcing parents, the cooperative process is a cutting edge and cost saving approach to achieving personal parenting and financial goals, while at the same time preserving the emotional health of the parties and the children.

I have written in this blog on Collaborative and Cooperative Divorce and conducted a seminar last year for the Kane County ADR Committee on Collaborative and Cooperative Divorce. The Collaborative Divorce offers some distinct advantages to divorcing parties over the typical bitterly contested, litigated divorce. However, there have been some difficulties with the collaborative model, such that my office more typically suggests a Cooperative Model. I have developed my own approach to the collaborative process, and other cutting edge lawyers have done so, as well. In the right case, with the right parties, it's a terrific way to help divorcing families. What is this model? Linda Roberson wrote recently about this model, and I enclose it below:

Cooperative Divorce

The attorneys who are spearheading the “collaborative divorce” movement have adopted this idea with the best of intentions. They are looking in good faith for a more humane and less stressful way to deal with the sturm und drang of marital dissolution. They are legitimately frustrated with the waste of time and duplication of effort that goes into simultaneous settlement negotiations and trial preparation. They want to make a hard time easier for their clients and for themselves.

We can work toward these goals without running afoul of ethical rules, and refusing to use the available resources of the court system appropriately to facilitate negotiated settlements wherever possible. Let’s call it “cooperative divorce.”

Continue reading "DuPage and Kane County Cooperative Divorce " »

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.

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

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.

What many family lawyers have sensed for a few years has now been corroborated by Gregg Herman, who chairs the American Bar Association Family Law Section. He says, “Divorce has become far less litigious in that more cases are settled than litigated.” The members of the American Academy of Matrimonial Lawyers have noticed the same phenomenon. In a poll last year, 58 percent of its members indicated that more of their divorce cases over the past five years were settled without trial. James Hennenhoefer, the president of the Academy, believes that there is a clear preference especially among middle-income clients to resolve cases with less contention, in part to cut down on costs.

Contentious divorces still exist. Custody/parenting issues still top the list of hotly disputed areas, followed by spousal support and division of retirement accounts. Acceptance by judges of shared parenting plans has helped mitigate custody litigation.

The statistics and quotes appeared in the June 2008 ABA Journal article, “Still no Bed of Roses” written by Jill Schachner Chanen. Robert Mues originated this blog copy.

Michael Roe's practice integrates Collaborative and Cooperative Divorce models, allowing divorcing couples to resolve custody and financial issues in a cooperative, low-court environment. For some families, this is the lower cost, lower stress alternative to a bitter, costly divorce.

Some complex cases need to be aggressively prosecuted. In my practice, cases involving psychological issues and parental alienation do not typically settle. These cases require careful, experienced strategies, aggressive prosecution, and trial preparation.

You’ve probably heard horror stories from friends and acquaintances who’ve had expensive, ugly divorces, right? Maybe you’ve also heard from some who feel better about the process because they didn’t go the slash-and-burn route, but used divorce mediation instead.

Divorce mediation is a process in which a neutral third person, called a mediator, sits down for a series of meetings with a divorcing couple to help them reach an agreement about things like property, custody, and support. Most couples arrive at agreements they can live with—which means they don’t have to fight it out in court. Mediation offers many advantages over court battles.

Unless you’re one of those fortunate few divorcing people who can negotiate directly with your spouse with a minimum of acrimony to come to an agreement about dividing property and parenting your children, divorce mediation may be a great option for you.

Generally, mediation is voluntary, although Illinois courts will require you to go to mediation if you can’t agree about child custody. You can go to mediation at any point in your divorce, even if you’ve already hired lawyers. Divorce mediation has an extremely high success rate—the vast majority of cases that go to mediation get settled there.

To find out more about mediation and how to get through a divorce amicably, try reading Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Attorney-Mediator Katherine E. Stoner (Nolo).

I receive a fair numer of calls from individuals looking for a lower cost, lower stress means of pursuing their divorce. Some people report that they want mediation, and describe for me what sounds like Collaborative or Cooperative divorce, and vice versa. Despite the sometimes confusion, one point is clear: people are looking for a better path to take that the traditional bitterly litigated divorce. While mediation is helpful, and favored by Illinois judges, Collaborative and Cooperative divorce practice presents some advantages

Mediation and collaborative practice are two very different practices, but they both have at heart the same sensibility: resolving difficult family disputes in a lower conflict manner. The Oklahoma Family Law Blog highlighted these practices in a recent post, on which I have summarized and commented further:

In mediation, there is one '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. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced. A well trained mediator can try to help bring the parties back to the center, and facilitate resolution of disputes that the parties view as unresolvable. However, some mediations end without a resolution, and the parties return to court with no perceived options left but litigation.

Collaborative Law was designed to deal more effectively with all these problems of unresolvable impasse, 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 skilled advocates. 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.

Collaborative and Cooperative Divorce practice are really processes, in which the parties and the attorneys are fully and mutually engaged, together. There is guidance, advocacy, and negotiation, all in a respectful and non-litigious environment. Is this a better path? Absolutely, for many individuals seeking a lower conflict, lower cost divorce.

Of my clients that smartly utilize the collaborative or cooperative model of divorce (ie low conflict) I usually don't see a need for therapy or transition counseling during a divorce. Some of my clients do benefit, however, from contact with an experienced therpaist skilled in divorce, family conflict, and co-parenting counseling.

Divorce can be an isolating. Divorce is change. Divorce is transition. Divorce can be anxiety-producing, even frightening. My office neighbor, Rhonda Kelloway, LCSW, speaks of the role of a therapist as a "professional, caring companion through this difficult stage in your life journey." Rhonda speaks of goal setting and charting a course to help her clients reach the goals that they desire for themselves for the future. "My goal," Rhonda says, "is to help you get back to your best life as quickly as possible." I like this approach, and have always felt that my clients in the difficult transition of divorce have benefited from counseling.

Rhonda Kelloway can be reached at 630-569-0822.

There has been a lot of recent attention and requests for the non-court collaborative divorce from some very smart and informed people in DuPage, DeKalb and Kane counties recently. What are the benefits to a collaborative model? Read some of the reasons below:

Lower Cost
The collaborative process is generally less costly and time-consuming than litigation.

Client Involvement
The client is a vital part of the settlement team and have a greater sense of involvement in the decision making which affects their lives.

Supportive Approach
Each client is supported by their lawyer and coach in a manner that still allows the attorneys to work collaboratively with one another in resolving issues.

Less Stress
The process is much less fear and anxiety producing than utilizing Court proceedings or the threat of such proceedings. Everyone can focus on settlement without the imminent threat of 'going to Court'.

Win-Win Climate
The Collaborative process creates a positive climate that produces a more satisfactory outcome for both parties. The possibility actually exists for participants to create a climate that facilitates 'win-win' settlements.

Speed
The speed of the collaborative process is governed by the parties rather than court calendars.

Creativity
The collaborative process encourages creative solutions in resolving issues.

Clients in Charge
The non-adversarial nature of the collaborative process shifts decision making into the hands of the clients where it belongs, rather than into the hands of a third party (the court).

SOURCE: Collaborative Law Institute of Georgia

Many divorces take too long and cost too much. Isn't this the lament of so many people...the divorce dragged on, the lawyers fought over everything, the court status hearings were much ado about nothing?

For divorcing couples, one way to achieve a divorce without the acrimony, the time, and the cost is the collaborative divorce. The Law Offices of Michael F. Roe practices and recommends collaborative divorce. What is collaborative divorce?

Continue reading "DuPage and Kane County Collaborative Divorce" »