Collaborative Divorce in Illinois
The goal of Collaborative Divorce in Illinois is to assist people choosing to end their marriage without destroying their family in the process. Collaborative divorce is a dispute resolution process where spouses and their attorneys work together cooperatively to negotiate equitable settlements without going to court. The focus is on constructive problem solving based upon the divorcing couples' individual and shared values rather than on adversarial bargaining and court imposed solutions. Collaborative Law, Collaborative Practice, and Collaborative Divorce are terms used interchangeably.
How does a collaborative practice differ from a traditional divorce?
A collaborative divorce differs from a traditional divorce because in a collaborative divorce, there is not a financial incentive for a lawyer to go forward with contested issues. In fact, if the lawyer believes he or she must go forward with contested issues, each of the lawyers must ultimately withdraw from the client's representation. The parties in the collaborative divorce always retain their ability to go forward with contested court proceedings — although this ends the collaborative divorce process and the lawyers must withdraw from the representation.
How do you obtain the necessary information in a collaborative divorce?
The participants to a collaborative divorce complete a sworn comprehensive disclosure statement. This comprehensive disclosure statement is similar to the uniform comprehensive financial affidavit approved in 2016 for use in Illinois divorce and parentage cases throughout the state. In the traditional adversarial system, often a great deal of wasted attorney's fees is spent trying to force discovery issues. Lawyers refer to the legal steps that are taken as “201(k) letters, motions to compel, motions for sanctions,” etc., that are avoided in a collaborative process. The collaborative process facilitates direct communication between the parties. In a traditional adversarial divorce, if there is non-compliance with discovery, then what will often occur is that one lawyer has his or her secretary generate a form letter — referred to as a 201(k) letter – at a cost to the client. In collaborative practice, the communications and “homework” is done far more directly because the lawyer(s) or financial specialist, etc., will be able to request directly from each party the necessary information. One of the commitments in collaborative practice is that the participants agree to make full, honest and open disclosure of all relevant facts and circumstances.
What are the negatives of the traditional adversarial divorce process?
In a traditional adversarial divorce, one spouse files a suit the other for divorce (called dissolution of marriage in Illinois) and sets in motion a series of legal steps. These eventually result in a resolution achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The conflicts can take a toll on the emotions of all the participants, especially the children. Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The nature of Collaborative Practice can ease the emotional strain caused by the breakup of a relationship and protect the well-being of children.
What is the approach used to settle a traditional divorce case?
In the standard divorce case, after discovery is exchanged, there will be a letter in which one party outlines the proposed principles of settlement. If this is rejected, the parties will proceed to a “pretrial” or “settlement” conference. I use the term “settlement conference” because it is more descriptive. The parties submit memos to the court which ideally are to be read by the judge before the pretrial conference. The court then conducts a conference with only the lawyers and judge involved. The conference is in the judge's office (chambers) in which he or she will listen to the attorneys for a relatively short period of time and then make a recommendation as to how the case should be settled.
What is the downside of the approach used in a traditional divorce case?
The downside is that because of the nature of the court system, I have found that even when a pretrial conference memo is provided to the judge days before the pretrial conference, many judges do not have the time to read the pretrial conference memo. Therefore, the judge will only have several minutes to consider the complexities of a couples' married life and then make a recommendation as to how their entire case should be settled. Each judge will bring his or her biases to the table in making this settlement recommendation. For example, many judges have their rules of thumb as to amounts of maintenance and many other issues. Sometimes these rules of thumb are fair and sometimes they are not. The bottom-line is that even in the best of circumstances the court will only have a very limited amount of time to give settlement recommendations. The settlement recommendations are not based upon the individual and shared values of the couple that is divorcing but often upon rules of thumb which are used to
What are the costs of a collaborative divorce?
Every case is unique. It is impossible to predict with any pin-point accuracy the cost of divorce except in the simplest divorce case. Collaborative divorce is generally a less expensive option as compared to traditional adversarial divorce. For example, in the leading book The Collaborative Way to Divorce the authors (Stuart Webb and Ronald Ousky) indicate in the subtitle collaborative divorce generally has lower costs. In 2007, the Boston Law Collaborative surveyed 199 cases as to their median costs. It found that the median settled divorce cost surveyed was indeed more expensive than the median cost for a collaborative divorce (with a savings of approximately $6,000 in cases surveyed).
In a traditional divorce case, if I am in a county where the same judge would handle the settlement conference as the trial, isn't there an advantage to learning the judge's pretrial conference recommendations?
The same judge who handles the settlement conference will generally be the trial judge. So most clients believe that the judge will inevitably rule the same way at trial as the judge recommended at the pretrial conference. I have found that sometimes this is true and often it is not. Many times a court will decide differently once realizing that a short presentation at a settlement conference was not enough to give the judge a full flavor of all the facts and circumstances of the case. Nevertheless, the party who is perceived to have “won” at the pretrial conference often becomes inflexible in negotiating further believing that he or she has little to lose by taking a case to trial. The lack of flexibility in the party's positions following a settlement conference is deficit of the tradition divorce settlement process.
What is the approach used in a collaborative divorce to settle cases?
The model used in collaborative divorce cases involves interest based negotiations. It provides the tools to couples to enhance their ability to communicate during the divorce process and forward. The earliest in this school of interest based negotiation is the book, “Getting to Yes.” Lawyers who use this method to negotiate divorce cases, do not try to emphasize positions but instead emphasize principles. In a traditional adversarial system, the focus is upon competing predictions about what the court is reasonably likely to do. However, the needs and interests of the divorcing couple are not the benchmark. Instead, the court's focus is upon maintaining predictable positions so that more and more couples will settle cases within this range of predictable positions. The goal in collaborative practice is to create scenarios in which the needs and interests of each participant in moving forward with their lives is better met. Collaborative professionals try to envision options for mutual gain rather than concentrate on bottom-line positions. In doing so, the lawyers and the parties engage in what is called interest based or value based discussions. Ideally in a collaborative divorce, the lack of positioning will save the parties funds in terms of the cost of litigation.
If there is no pretrial conference in a collaborative divorce, how is a case settled?
Rather than a pretrial conference, the lawyers will conduct four way conferences as a means of settling a case. In a collaborative divorce there can be one four way conference or often there are multiple conferences. A four way conference is a conference which is conducted after there has been disclosure of all the relevant information as a means of expediting a settlement in this case. In a four-way conference in a traditional divorce case, each lawyer and his client will sit on opposite sides of a table and discuss settlement. One collaborative lawyer put it this way, “I like to say that we put the issue we're working on in the center of the table, and we all focus on ways to resolve it–rather than seeing the other party as the problem and attacking him or her.” Ideally, there is an entirely different tone in a four way conference in a collaborative divorce case as opposed to the traditional divorce.
What happens once the parties to a divorce case reach an agreement in a collaborative divorce?
There is one court appearance in which the parties go to court to prove-up their divorce agreement, that is, the marital settlement agreement. In this manner, a collaborative divorce is exactly the same as a conventional divorce.
What if an agreement can't be reached?
If an agreement cannot ultimately be reached the lawyers for the parties withdraw, and the parties hire new lawyers to prepare the case for trial.
Well, isn't there a down-side to a collaborative divorce if an agreement is not reached?
If an agreement is not reached there is a certain amount of inefficiency that is involved. This is because the divorcing couple must start the divorce process over with traditional adversarial counsel. However, there is also inefficiency when a client chooses another lawyer during the pendency of a case. I find that changes of lawyers occur with much higher frequency in adversarial cases than in collaborative law cases. This is because of the nature of the adversarial system. Often a client will have spent thousands of dollars on a temporary hearing only to receive results which are less than optimal. It is at this stage that many clients seek a second opinion or seek to swap horses in mid-stream. Because of the tools available in interdisciplinary collaborative practice — generally the divorcing couple does not need to resort to terminating the collaborative practice and
Does the lawyer chosen by my spouse in a collaborative law setting make a difference?
Yes. Often I am asking about what will happen if the other side hires a very good Illinois family lawyer – inevitably a lawyer whom I know well. Clients believe that they are well served if they have a good lawyer and the other side has a lawyer who has lesser skills. I find that the opposite is the case. I use a tennis analogy. If I am playing tennis with a player who is bad, my game does not look good. If I am playing tennis with a player who is as good or better than me, then I do far better. The same applies to divorce cases. Often with less experienced lawyers, much of the time spent is in trying to educate that lawyer with the law.
Are there times when collaborative law cannot work?
Yes. Instances where collaborative representation is not recommended are:
Generally, a case in which there is already an order of protection or where there is significant domestic violence is a case where collaborative law is not recommended.
People who tend to blame others for all their problems they are facing without a willingness to accept any personal responsibility tend to do poorly in a collaborative law setting, although with skilled coaching and mental health counseling, they may be able to make effective use of the process.
What if a divorce case has already been filed? Can a case still be handled collaboratively?
Yes. Because the concept of collaborative divorce is new, it is up to divorce lawyers to educate judges about the concept. It a case has already been filed, it is critical that judges “back-off” from management of a collaborative divorce case. For example, the process will only work when the court is willing not to set artificial deadlines for such things as discovery cut-off, pretrial conference dates, and the like. In a collaborative divorce there is a much greater emphasis on the responsibility of the parties and their attorneys to “move” their divorce case. However, the recent Supreme Court Rule 900 series of custody rules may create a conflict if a case is being handled collaboratively. For this reason, collaborative participants often agree that it is best to collaborate without the filing of a divorce petition. In fact, the new Supreme Court Rules have extremely tight deadlines, which inevitably will create far higher costs for divorce in cases where custody issues are not
Can collaborative law be used in a case where my spouse is the sole owner of his own corporation?
Yes. In business valuation cases, traditionally each party will retain their own expert to value the business. The experts will not work together. Each expert will usually charge a minimum retainer of $5,000. I have found that generally the fees for each expert in a business valuation case will be in excess of $15,000. Many times the cost can be much higher. In a collaborative divorce, it is often agreed upon to engage the use of a neutral expert. While this can be done by agreement, there is no specific provision in Illinois law which allows the court to require the use of a neutral expert in business valuation cases.
How does collaborative law compare to mediation?
In mediation, there is one “neutral” third party who helps the disputing parties try to settle their case. The mediator should not give either party legal advice, and cannot be an advocate for either side. Collaborative practice was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same absolute commitment to settlement as the sole agenda. Each client has the opportunity for quality legal advice and advocacy built in at all times during the process. Collaborative practice brings more tools to the table than does mediation. Each lawyer who handles a collaborative divorce will typically be trained in mediation. However, collaborative law is not mediation because in collaborative law involves a team practice focused upon the values and interests of the divorcing couple.