Is a Collaborative Divorce a Viable Option for My Contested Illinois Divorce?

 Posted on September 17, 2020 in Divorce

Breaking the news to your spouse that you want a divorce can be a very daunting and stressful task, but it is something that is unavoidable. You may wonder how the situation will play out, how the conversation will go or how your spouse will react. Will they break down and begin to cry in desperation or will they become angry and hurt, storming out of the house? Whatever their reaction to the news of your desire to separate, there is likely to be some level of resistance from your spouse. This resistance could vary from simply needing a little nudge in the right direction to downright refusing to cooperate at all.

Divorce is notorious for being an unpleasant, nasty, and heartbreaking experience for everyone involved. People can suffer from the stress of the divorce and children can end up bearing the brunt of the trauma. Multiple studies have come to the same conclusion that it is not divorce itself that causes lasting issues for children of divorce, but rather the exposure to their parents’ conflicts and arguments that cause emotional trauma. Fortunately, most people realize what is at stake when faced with the dilemma of divorce and are willing to somewhat cooperate for the sake of preserving the family. Even if your spouse seems argumentative or combative, they can usually be persuaded to agree to a collaborative divorce once they understand the benefits.

What Is a Collaborative Divorce?

Once you have made the decision to end your marriage, you then are faced with the task of determining how you will go about getting that divorce. One method of divorce that is becoming more common and increasingly popular is collaborative divorce. In the simplest terms, a collaborative divorce is a divorce that occurs when a couple agrees to settle their divorce outside of the court system. However, for it to be a true collaborative divorce, there are certain elements that must be present and certain guidelines that should be followed to make it authentic. A collaborative divorce requires both spouses to be willing to work together in a productive, rather than a destructive manner, along with help from a team of various professionals ranging from child psychologists and divorce coaches to financial advisers and estate planners.

Elements of the Collaborative Divorce Process

Getting a collaborative divorce can look a little different than getting a traditional litigated divorce. During a litigated divorce, nearly all decisions made pertaining to your divorce are made in a courtroom by a judge. This leaves you with little to no power when it comes to having a say in your own future. In a collaborative divorce, negotiations between you and your spouse take place throughout a series of meetings in private offices or conference rooms, rather than in a courtroom. These meetings can take place as often as is feasible for your team or as little as feels comfortable for you and your spouse. The flexibility that the collaborative divorce process provides means that the process does not always look the same for every family, but it does typically follow the same basic path in most cases.

1. Finding a Collaborative Divorce Attorney

Before you and your spouse can begin the collaborative divorce process, you must both find and hire a divorce lawyer who is specifically trained in collaborative law. A lawyer who has been educated on collaborative divorce in Illinois and who has experience handling collaborative divorces will be able to help you through your divorce. You and your spouse are required to hire your own separate attorneys, as the same attorney cannot give legal advice for both of you.

2. Signing the Agreement

The collaborative divorce process officially begins when you and your spouse sign what is called a Participation Agreement. This document is the written agreement which states that both you and your spouse agree to settle the issues of your divorce outside of the courtroom. This agreement also states that you and your spouse agree to be honest with one another about all things pertaining to the divorce and treat each other with respect so solutions can be found that benefit the entire family. If one of you ends up taking the case to court, the Participation Agreement states that both of your lawyers and your other collaborative professionals are not permitted to continue with the case. This means that both you and your spouse would be required to hire new lawyers if one of you decided the collaborative process was not successful. As such, the Participation Agreement must be signed by both you and your spouse, along with both of your attorneys.

3. Building Your Team of Divorce Specialists

There is not just one area of your life that a divorce affects -- it affects nearly all of it. Because of this and the team-oriented nature of the collaborative process, collaborative divorces involve a team of various individuals who will help you with each aspect of your divorce. These professionals are specialists in their fields and can include individuals such as counselors, divorce coaches, appraisers, accountants, business evaluators, realtors, tax advisors, child custody evaluators, child psychologists, or any other professional that may aid in finding a solution to an issue in your divorce.

4. Negotiating the Terms of Your Divorce

Once you have assembled your collaborative team, you can begin your negotiations. These will take place through a series of meetings and can occur as frequently or as infrequently as is feasible for everyone involved. These meetings are when the decisions pertaining to your divorce will be made, such as those involving asset distribution, parenting time, and decision-making responsibilities. Your lawyer should be with you for most of these meetings to provide you with legal advice and to keep you and your spouse on topic, civil and respectful to one another.

5. Finalizing the Settlement

Once you have reached a decision on all major issues pertaining to your divorce, your attorneys will get to work drafting all of the appropriate paperwork for your divorce agreement. Once that has been drawn up, the divorce agreement is filed with the court, and the first, last, and only court hearing is scheduled. On the day of your hearing, you and your spouse, along with your attorneys will appear in court to finalize your divorce and sign the agreement.

Benefits of Utilizing a Collaborative Divorce

In today’s world, you have more options than ever before if you come to the conclusion that you no longer want to be married to your spouse. In most divorce situations, there are four main methods you could use to get a divorce: do-it-yourself divorce, litigated divorce, mediated divorce, or collaborative divorce. In most cases, it is strongly advised against a DIY divorce, simply because divorces can be complicated and you should be fully aware of what you are getting yourself into before you sign on the dotted line.

Litigated divorces are likely what you think of when you think of a divorce -- arguing over the custody of the kids in a courtroom. Litigated divorces are usually long, drawn-out, and wrought with stress and contention. It is also unlikely that a divorce is fully litigated, as Illinois requires spouses to attend mediation if matters are contested during a divorce. Mediation occurs when a couple attends meetings with a neutral third party who helps guide the couple through their decision-making. Collaborative divorce, however, offers many benefits that none of the other methods of divorce can match, such as:

• Offering more privacy than a traditional litigated divorce by keeping affairs out of the public record
• Letting you control how fast or slow your divorce proceeds
• Supporting you in all aspects of your divorce, including the legal, financial, and emotional aspects
• Allowing you to maintain the ability to make your own decisions about your family, rather than a judge having that ability
• Focusing on the needs of everyone in the family, as individuals and as a whole
• Allowing you to come up with unique and creative solutions for your family’s needs that do not necessarily have to align with what the court’s solution would have been
• Promoting respectful and effective communication between you and your spouse
• Helping you establish and maintain a healthy co-parenting relationship
• Placing an emphasis on the needs and wellbeing of the children
• Reducing the stress, drama, conflict, trauma, and fighting that often accompany divorce

Is a Collaborative Divorce Right for Me?

When it comes to deciding the type of divorce that you ultimately want to use, there are many things that you must consider. Collaborative divorce is not right for every couple or every situation. For a collaborative divorce to be successful, both spouses have to agree to the process and want to work together to find a solution. You cannot force a spouse into a collaborative divorce -- it just will not work. Another situation in which collaborative divorce is not recommended is if there is a history of domestic violence between you and your spouse or if you fear that your spouse may harm you or your children. Divorces that involve a threat of domestic violence also typically involve some sort of power imbalance. The goal of a collaborative divorce is to work together with your spouse, as an equal, to form solutions, which you cannot effectively do if you do not have respect for them.

A major difference between a collaborative divorce and a litigated divorce is that in a collaborative divorce, there is no traditional discovery process. In a litigated divorce, discovery is the process of exchanging financial information between spouses, during which the spouses’ attorneys draft requests for documentation and issue responses. During a collaborative divorce, both spouses agree to be honest and upfront about their assets, income, and all other financial information. If you suspect your spouse is hiding assets from you or is lying about their income, you may want to discuss other divorce options with your attorney.

Discuss Your Situation with Our DuPage County Collaborative Divorce Lawyer

Going through a divorce can be a painful and stressful event in your life, but it does not have to be. A traditional litigated divorce would likely perpetuate much of the stress of your divorce, while a collaborative divorce can offer many benefits and can help make the separation process easier on the entire family. At Weiss-Kunz & Oliver, LLC, we are committed to helping you and your family end your marriage in the most peaceful and amicable way possible. Attorney Maxine Weiss-Kunz is a member of the Collaborative Law Institute of Illinois and has been certified to practice collaborative law in the state of Illinois. If you have questions about the collaborative divorce process or you are unsure if a collaborative divorce is right for you, contact our Elmhurst, IL collaborative divorce attorney today at 312-605-4041 to schedule a time to discuss your case.

Sources:

https://www.americanbar.org/news/abanews/publications/youraba/2018/july-2018/neither-mediators-nor-negotiators--collaborative-lawyers-emphasi/

https://collaborativedivorceillinois.org/how-collaborative-divorce-works/

https://collaborativedivorceillinois.org/principles-and-guidelines/

https://collaborativedivorceillinois.org/is-it-right-for-you/

https://www.isba.org/committees/women/newsletter/2008/01/collaborativedivorce

https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3804&ChapterID=59

https://www.forbes.com/sites/jefflanders/2012/04/24/the-four-divorce-alternatives/#96e88c720ae1

https://www.natlawreview.com/article/what-collaborative-divorce-process