Do All Illinois Divorces Need to Take Place in a Courtroom?

 Posted on March 12,2021 in Divorce

When you imagine a divorce, you likely picture two spouses screaming at each other in the center of a courtroom. The spouses cannot come to an agreement and neither spouse is willing to compromise, so the judge intervenes on their behalf and makes a decision that neither party is truly happy with. While these contentious types of divorces do occur, most divorce proceedings are much less dramatic than how they are depicted on TV. Before you begin the legal portion of your divorce, it is important to know your options and determine which type of divorce proceedings are best for you and your spouse. 

Analyzing Your Relationship

As much as you may not want to reminisce about your marriage or think about ending your union with your spouse, you will need to take time to consider the current state of your relationship before selecting which type of divorce you should pursue. The state of Illinois has a variety of options so that you can choose the one that works best for you. Can you and your spouse come to an agreement or do you struggle to find common ground? Are you each willing to compromise or are you both strong-headed? Is it necessary that you maintain an amicable relationship moving forward or will you be parting ways forever? By considering questions like these, you can better determine how well you can work together--or your inability to do so--which can greatly impact the types of divorce proceedings that you should consider.

Uncontested Versus Contested Divorce

Perhaps you and your spouse have only been married for a short time and you have very little to divide between the two of you, or maybe you are both in agreement on who will get what. If this is the case, you can pursue an uncontested divorce. This involves each party coming to a mutual agreement on every aspect of your divorce without any argument or negotiation necessary. This is objectively the quickest and most cost-effective way to get divorced and does not necessarily require each spouse to have their own separate attorney. Some law firms even offer a flat rate for uncontested divorces since they will not be spending the same amount of time or energy when handling this type of divorce.

In the majority of cases, couples rarely agree on every aspect of the divorce agreement and will typically deviate toward a contested divorce. This term encapsulates a number of divorce options, all of which require some form of negotiation between the spouses. Contested divorce procedures are much more involved than an uncontested divorce and will include the following steps regardless of the means by which you create your divorce agreement:

1. One spouse will need to take the steps to actually file for divorce. This includes preparing, filing, and serving the divorce petition. Historically, one would need to state your reason for divorce, such as infidelity, but today, the only grounds for divorce are irreconcilable differences, which essentially means that you no longer wish to be married.

2. After the petition has been filed, the other spouse will have a specified amount of time to respond.

3. Both parties will then share information in what is known as the discovery process.

4. Both parties will then have conferences with their attorneys and begin to negotiate with their spouses.

5. If the negotiations fail, the divorce case will go to trial.

Mediation

What if you could be in complete control of your divorce agreement? Perhaps you and your spouse actually have a fairly good relationship and are more than capable of making decisions together. For couples like these, mediation might be your best option. Divorce mediation involves the hiring of a third party, known as the mediator, who can guide you and your spouse on the right path without intervening on your behalf. This third-party mediator will be well-versed in the legal process so that they can lead you through each step of the divorce process, checking all of the necessary boxes, without providing legitimate legal advice. You and your spouse will be able to make your own decisions regarding property division, child custody, spousal support, and other important issues.

Divorce mediation can often save you lots of time and money when it comes to creating your divorce agreement. Rather than spending months or years in a courtroom, you will likely be able to create the terms of your divorce agreement in just a few months without the constant arguing that can come with a trial divorce. You will also save money on attorney fees. Divorce mediation allows you and your spouse to split the cost of hiring a single professional rather than spending money on two separate attorneys. The less time spent on your divorce agreement will also save you money when it comes to the mediator’s billable hours. 

Divorce mediation is a great option for those with an amicable relationship but can quickly turn into a nightmare for couples who are incapable of working together. Even if you and your spouse had a fairly good relationship throughout your marriage, divorce can unexpectedly bring out the worst in people. It is common for feelings of bitterness, resentment, or disappointment to surface and impact the divorce proceedings. In cases like these, divorce mediation can actually lead to longer divorce proceedings. The lack of legal advocacy on either side can leave both spouses arguing on every little detail included in the divorce agreement, racking up more and more billable hours and time spent on your divorce. In order to be prepared for this possibility, it is a good idea to find a mediator who can double as your divorce attorney if necessary.

Collaborative Divorce

If you are looking for a step above mediation, while still avoiding time in court, a collaborative divorce might be your best option. This is a relatively new type of divorce proceeding that is for those committed to creating their divorce agreement outside of a courtroom. Collaborative divorce proceedings first emerged in the 1990s when one attorney discovered that his clients could benefit from negotiating their issues together, rather than with a judge’s overarching decisions. 

Collaborative is the more common form of divorce that is now being used. Divorcing spouses hire their own personal attorney who can advocate on their behalf. Each spouse will meet separately with their attorney to discuss their circumstances and priorities when it comes to their divorce. They will also disclose their financial information for the asset division process and child and spousal support determinations. The spouses will then meet alongside their attorneys to create their divorce agreement. Collaborative divorce places the power into the hands of the spouses as they discuss their circumstances and negotiate the terms of their agreement. Their attorneys will step in when their client needs support. In addition to their attorney, those in a collaborative divorce may also consider hiring a divorce coach, a financial specialist, and a child specialist if the couple has children. 

Collaborative divorce is often the best option for divorcing couples. You are able to take matters into your own hands by reaching an agreement or settlement on your own. However, you still have a legal advocate when necessary. It is typically cost-effective as you avoid facing the court fees that come along with divorce litigation. Collaborative divorce also allows you to easily transition to trial litigation if necessary since you each have legal representatives already secured. Collaborative divorce may not be an ideal option if you and your spouse have a contentious relationship or there is a history of abuse. Even though you have legal representatives, the final decisions in your divorce agreement are ultimately up to you. If you cannot come to an agreement on the terms, even with your attorney advocating on your behalf, it may be more time and cost-effective to seek out trial litigation. For those with a history of abuse, this type of situation can greatly impact your ability to make decisions that prioritize yourself. Abuse victims may feel unable to voice their true opinions for fear of backlash. In instances like these, trial litigation might be your best option.

Trial Litigation

If you have reached the point where compromising and creating a mutually beneficial agreement is unrealistic, divorce litigation will be your final option. This involves each legal professional advocating on behalf of their client in front of a judge who will ultimately make the final decision. Each spouse will be able to state their preferred arrangements, but they will have no control over the final decision that is made. For some couples, this may mean creating the entire divorce agreement with the help of a judge while others may turn to a judge for only specific unresolvable issues, such as child custody. These divorce proceedings can often be costly and drawn out, although they may take less time than a collaborative divorce if you are aware that you and your spouse will not come to an agreement in this way. A divorce trial will include the following steps:

1. Discovery - A full disclosure of your finances to ensure informed decisions are being made.

2. Disclosure - A summary of the arguments being made and the evidence used.

3. Pre-trial conference - The judge will meet with the attorneys to discuss the issues that need to be resolved

4. Opening statements - Each attorney will state their client’s case

5. Evidence and witness testimony - Each attorney will present their evidence and provide witness testimonies.

6. Closing arguments - Each attorney will summarize their arguments.

7. Ruling - The court will present its decisions.

8. Appeal - Either party can appeal the verdict if they are unhappy with the final decision.

Child issues are the most common reason that divorce cases go to trial. Decisions regarding child custody, parental responsibilities, and child support can be challenging to come to an agreement on and are often deferred to a judge for help. Unfortunately, this also means that parents lose their ability to make the decision themselves. The judge will make decisions in the best interest of the child, hearing both parents’ statements, considering their role in the child’s life up to this point, and reflecting on any other parenting agreements that were previously made.

Contact a DuPage County Divorce Lawyer

As you can see, there are a number of different ways in which you can create a mutually beneficial divorce agreement, some of which may work for you while others may not be viable options. In order to be prepared for any forms of contention that may arise, you should work with a firm that offers representation in all areas. At Weiss-Kunz & Oliver, LLC, our skilled legal team has experience in all types of divorce cases, including collaborative law and mediation. For help determining which type of divorce is best for you, call our qualified and trustworthy Elmhurst divorce attorneys today at 312-605-4041 to schedule a confidential consultation.

Sources:

https://goodmenproject.com/divorce/is-divorce-mediation-the-best-option/

https://www.liveabout.com/things-you-need-to-know-about-collaborative-divorce-1103296

https://lavendermagazine.com/our-lives/the-difficulties-of-divorce/