Illinois Divorce Lawyer Blog

It's rare to run across someone that does not have a Facebook or Twitter account. While few teens these days exist without a Facebook account, Facebook has been especially popular among adult users, allowing the account holder to share family stories, photographs, and to reconnect with long lost classmates.

Facebook has also begun to have some interesting interplay with divorce and custody litigation. See this recent story about how a Facebook account was used by divorcing parties in a high conflict divorce case: http://www.theglobeandmail.com/life/the-hot-button/the-most-bizarre-use-of-facebook-in-a-divorce-case-ever/article2054594/

I observed only last week a hearing in one of our Illinois courts that involved an interesting (and probably not uncommon) use of Facebook. The Wife was on the witness stand testifying to her relationship, or lack thereof, with a gentleman whom the Husband claims is a paramour that has had contact with their couple's minor child. Wife denied any real relationship, and denied that the alleged paramour had ever been in their home.

Following the Wife's lengthy and detailed denial of the relationship, Husband's attorney produced a series of Facebook screenshots that Wife has posted on her account, her sitting with the paramour on the sofa in the couple's living room. The demeanor of the two suggested more than a casual acquaintance.

Facebook, in the end, proved the spoiler for the Wife's case. While the judge did not decide custody issues based on the Facebook information, the judge did find that the Wife had testified falsely under oath, and barred her from further contact with the paramour while she was with the minor child.

Social media have proven to be a huge benefit to teenagers and adults alike, allowing for connectivity and interaction between friends and distant relatives. In the context of divorce, however, all divorcing parents should be mindful that these days, with electronic discovery being a simple means toward illuminating potentially negative facts of a case, that Facebook "friends" may turn out to be evidentiary enemies.

If you're going through a divorce, be mindful that whatever you post on Facebook or Twitter may be printed and admitted as evidence into your divorce case.

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.

CNN is running a story today that discusses the use by a litigant of a "sex tape." The tape itself seems to be of the husband and the wife, and the anchor of the news program is taking calls to poll the audience as to how far the gloves need to come off, when a husband and wife are divorcing. One of the spouses wishes to use the private sex tape as "ammunition" in the divorce.

Part of my practice is aggressive litigation, and the other part collaborative practice and negotiated settlements. I am a trial lawyer, and have been since the first days I was a lawyer, in the 1980's. I am always comfortable employing any evidence that I feel will benefit my client's reasoned goals in a case.

Is having a sex tape useful? My guess is that, in most cases, it is not. Illinois does not assess the conduct of the parties in dividing assets and liabilities. Sexual behaviors of a parent may or may not be a factor with respect to a custody issue in the case. Certainly, a sex tape made by the parents, expected to be held private, likely makes the 'leaker' of the tape look bad. Revenge is a dish best served cold, as the adage goes, but revenge really has no place in a divorce case, unless as a litigant you wish to have more stress, acrimony, and spend more money on legal fees. No one wants that.

My view is that a 'sex tape" of one of the parents may be a factor in a custody issue. Certainly, a 'sex tape' made with a paramour is suggestive of poor judgment, poor impulse control, high risk behavior, and possibly psychological or personality disorder issues.

As in any litigated case, having evidence is just one consideration...the value and probative quality of the evidence is of more importance. So, if you're divorcing and angry, don't threaten to disclose a private sex tape made with your spouse. You won't receive any more assets from the judge, and you may earn his or her scorn by publishing something that most of us would consider a private, non-evidentiary item.

The end of the calendar year brings the holidays into view, and for newly separated and divorced parents, the arrival of the holidays brings anxiety, not cheer. This is all the more true for parents who will not be seeing their children on the traditional holidays. What approach can a newly divorced parent take now that the holidays are here? A few suggestions:

1. Try to see the changes in your life as opportunities, rather than challenges. I've suggested to clients through the years to buy the December issue of "Chicago Magazine" and find activities to do alone, if necessary, and new holiday activities that can be shared with the children. Visit one of the hotels in Chicago to see the holiday displays...do something, anything, that is new and different. The key is to let go of how the holidays used to be in the marriage and to create new adventures...for yourself and the children.

2. Establish new traditions, rather than lamenting the loss of old traditions. Instead of being sad that the children weren't with you to pick out the holiday tree, take a day that you do have the children, and ride the train into Chicago to visit the Daley Center's German Christmas Market. Buy an ornament that the children select from one of the Market's vendors, and take it home and place it on the tree.

3. Many clients report that during holidays the other spouse's family was the host family for most holiday activities. This holiday, reconnect with your siblings, or cousins that you lost track of during the marriage, and plan to visit with these family members. Take the children with you, if you can. Many parents find it easy to reconnect with family that may have been neglected somewhat during the marriage.

4. Project enthusiasm and happiness in these new activities with your children. Many kids are unsure how to feel in a new environment, and depend on their parents for "cues" as to how to perceive a new event. If you're in a new event or activity, don't lament how good things used to be; stay in the present, celebrate, and express happiness, and the feeling will be contagious.

5. Finally, take care of yourself. Use the time off during the holidays to reconnect with friends, or to make a list of new activities or places to see and experience in 2011. Not having your children with you every day is a terrible loss, but replace this feeling of loss with a sense of opportunity....use the "free" time to cultivate new opportunities for your physical, emotional, or spiritual growth. Plan new, "outside the box" ideas for yourself and the children.

Finally, keep in mind that greatest gift that you can give your children at the holidays is a sense of comfort and stability. Project a feeling of wellbeing when you are with them. Smile. Feel free to laugh. Let your kids know, through your smile and enthusiasm, that despite the changes, the holidays, and the future, seem worth celebrating.

I talked recently with one of the clerks of the court in the west suburbs about the number of new divorce filings in Kane and DuPage Counties. I was told that the number of filings is slightly behind 2009 numbers, but that the number of people filing and representing themselves, without an attorney, has risen fourfold.

Now, I'm a believer and proponent of encouraging people to handle matters that they can handle themselves. I recently advised someone who called me that her DuPage child support case could be handled, pro se, at the pro se night court that DuPage has instituted, as a means of helping people get simple adjustments to child support without having to hire a lawyer.

I also feel that divorce and custody cases are often challenging for the litigants, emotionally charged, and complex. The issues presented in these cases really need an experienced attorney, much like the old saw about doing one's own dentistry.

Cathy Meyer, of About.com, writes:

"Before you take on the job of representing yourself in your divorce case consider the legal aspects, not only the emotional aspects of the divorce. If you are not able to keep the two separated, it is best to hire a divorce attorney. Issues such as dividing marital property, deciding child custody, negotiating alimony and determining child support can have long-lasting, negative consequences if not handled properly.

You have the right to represent yourself, to be a Pro Se litigant but, the divorce process can be complex and I highly encourage anyone who can afford representation to seek it, if at all possible."

The Law Offices of Michael F. Roe practices collaborative and cooperative divorce, two lower cost, efficient, low stress divorce models that keep the divorcing couple out of court, and keep money in the parties' pockets, and difficult emotions in check.

Call my office today to learn more about lower cost, lower stress divorce, and reconsider whether a pro se divorce is right for you and your family.

One of my valued clients, who happens to be an engineer by training and otherwise an interesting and dynamic person, made a comment at court today. She had been watching other cases taking place at the courthouse, and marveled at the amount of controversy over objectively small issues. She stated to me and a colleague that "I simply won't come to court unless the issue in dispute is over a substantial amount of money."

Now, my colleague and I have both worked hard to keep court costs for clients as low as possible; both of us practice this cost effective way. We both agreed that it pains us as legal professionals to see people exhaust precious family funds on wrongheaded legal disputes.

What my client was speaking to was this universal concern that litigants should be mindful of the costs of litigation, and that many disputes are amenable to resolution without the costs, uncertainties, and stresses of litigation. This same philosophy of cost saving and collaboration underlies the movement toward collaborative and cooperative divorce.

If you have a family law concern, be ready to embrace the cutting edge strategies that a few of us in the legal profession have embraced in the right cases. Collaboration. Mediation. Alternative dispute resolution. Sure, some cases need to be aggressively litigated, and some matters need a judge's active intervention. I am a trial lawyer by training, and know how to win a war. But many other cases and clients need only to find a more balanced, cost effective and practical means to solve their more minor or resolvable disputes.

What did Abraham Lincoln once say? "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."

Part of practicing family law involves, at least in my opinion, a measure of compassion for and understanding of each client's family system, and the family system and financial changes that a divorce will visit upon a family. Each family is different; each case is also unique. My firm applies creative approaches to each case, with a goal of shaping outcomes that are best for the client and the family as a whole.

In helping families adapt to the changes that a conflicted divorce brings, there are resources available that can provide a measure of comfort and coaching.

Rosalind Sedacca's 'How Do I Tell the Kids about the DIVORCE?' is a thoughtful template for parents looking for coaching in how to help their children manage the change that divorce brings to a family. Even if you don’t purchase her guidebook, http://www.howdoitellthekids.com, you need to make sure you share these essential messages with your kids again and again so that they never forget:

1. You are, and always will be, loved by Mom and Dad.

2. You are, and will continue to be, safe.

3. You are not to blame for any of this.

4. Mom and Dad will still always be your Mom and Dad.

5. This is about change, not about blame

6. Everything is going to be okay.