Monthly Archives: September 2013

Family Law

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Family Law

10 FIRST STEPS WHEN CONTEMPLATING A DIVORCE

1. Get counseling:      Before filing for divorce, I highly recommend seeing a counselor first in an effort to try to save the marriage. Divorce can be economically and emotionally devastating and forever will change your life. In the event counseling cannot save the marriage, then having a relationship with a counselor/therapist will be particularly useful on an individual basis in helping to navigate the emotional ups and downs of a divorce. When children are involved, a good mental health professional can also help provide insight and understanding into the particular sensitivities of the impact of divorce on children.

2. Consult with an experienced divorce/family law attorney:       Do your homework by researching attorneys online and if possible, try to speak with any lawyer you may know to get a good referral. Many attorneys will tell you that they can handle your divorce and that they do many different things, but having an attorney whose practice is exclusively in the area of divorce/family law can be a valuable asset to you. In considering a lawyer, you may want to consider whether the lawyer is a fellow in the American Academy of Matrimonial Lawyers. The AAML is a national organization that requires a certain level of family law experience and stringent testing requirements as part of both a written and oral exam for admission into the organization. Do not be intimidated by this process and try to consult with as many attorneys as is necessary for you to feel comfortable with the personality and strategy of the lawyer you selected.

3. Choose the process of your divorce:          Many individuals considering divorce are not aware of the fact that there are different approaches or processes to obtaining a divorce. Most individuals understand the historically traditional approach to divorce, which is adversarial litigation. However, there are a number of alternatives including the collaborative approach, mediation, or a combination of different styles. Whether you engage in a formal process of collaborative law or mediation, it is my opinion that an individual is almost always better served reaching a settlement without the cost and acrimony of contested litigation. I am successful settling almost all of my cases out of Court, but there are occasions where litigation becomes necessary and as a last resort, is in the client’s best interest. In exploring what process works best for you and your family, you should make certain that the Firm you are going to hire to represent you is going to handle any type of process you select for what the facts of your case dictate.

4. Develop a strategy:             Most people understand that as part of a divorce the marriage will be legally dissolved. What they do not always understand is what else should be expected out of the process or how to get from point A to point Z. With your attorney, you should develop a long-term strategy to determine what your long-term goals are at the conclusion of the divorce, but also to develop short-term strategies dealing with temporary issues. If your lawyer is unable to provide you with some type of short-term and long-term strategy, then you are destined to have problems throughout the process.

5. Educate yourself:                 Do not hesitate to ask questions of your attorney and if so inclined, feel free to review the Illinois Marriage and Dissolution of Marriage Act. I caution prospective clients to be careful in what they read on the internet or what they hear from non-divorce lawyers as to what they might expect as part of the process. Also, educate yourself not only in understanding the law to the extent that you can, but educate yourself in terms of the finances of your marriage. Before you even file for divorce, you should try to gather copies of financial statements, tax returns, business records, insurance documents, appraisals, etc., that might assist your lawyer in establishing and identifying assets of the marriage. Do not be fearful if you do not have access to these records, as your attorney has power through the Illinois Supreme Court Rules to request documentation and to issue Subpoenas and take depositions to gather that information.

6. Protect yourself:               In the event you are contemplating divorce as a result of domestic violence and abuse, it should be your number one priority to have a safe exit strategy for you and your children. Your lawyer can assist you in obtaining an Order of Protection, but that should not be relied upon as your sole source of safety. In the event there is domestic violence and/or abuse, the police should be called immediately and if necessary, remove yourself from the situation and seek assistance from family or even a shelter for domestic violence victims.

7. Secure funds to retain your lawyer:              An established divorce/family law attorney is going to require a retainer of anywhere from $5,000 to $25,000, depending on the type of case. Most lawyers accept credit cards and all divorce/family law attorneys are required to bill by the hour. An established divorce/family law practitioner will likely charge between $300 and $600 per hour. It may be to your advantage to hire a divorce lawyer from a larger firm that has greater resources, as it is typical in larger firms to have associates, paralegals, law clerks and other staff billed at reduced hourly rates under the direction and supervision of a partner. Not only will this help manage costs, but having additional attorneys and staff familiar with your case will allow for better communication between you and your attorneys. Typically, if you hire an experienced and seasoned family law attorney or divorce lawyer, his or her time will be in demand, because his or her particular skill, talent and experience, so additional support is critical. Understand that paying a retainer is not the same as paying for a divorce. A retainer is just an initial deposit, but depending on the complexity and contention of your case, the attorney’s fees and costs might far exceed the initial retainer. If you are a spouse who is not in control of the family finances, you may have to borrow an initial retainer, but there are provisions in the laws of the State of Illinois that allow an individual who is not in control of the money to be able to request that the Court Order the spouse who is in control of the income and assets to advance funds for the other spouse, so that one spouse is not disadvantaged in a proceeding because they do not have control of the income or assets.

8. Establish individual credit:              It is particularly important to have credit established in your individual name prior to divorce for two reasons. First, and especially if you are the spouse who is not in control of the assets and income, you may need to access credit for day-to-day living expenses in the event your spouse does not approach the dissolution of the marriage in an amicable fashion and tries to “cut you off” from having access to necessary finances. Typically, the Courts will not treat temporary financial issues as an emergency, so it may be a couple of months before you are able to obtain a Court Order securing funds for day-to-day expenses. Second, in situations where the divorce is not collaborative, but rather very contentious, sometimes an irrational spouse will do, or not do, certain things with respect to regular monthly financial obligations that may negatively impact upon both parties’ credit. If your credit is damaged in divorce, it may be very difficult to obtain credit after the divorce, so even if you may not be able to establish access to new credit after the divorce, you will still have credit in your name.

9. Have realistic expectations:                    It is not uncommon for a divorce to last between six (6) and eighteen (18) months, with some cases being done sooner and some cases actually taking longer than eighteen (18) months. Many factors will determine the length of time it takes to get divorced including who the attorneys are, the approach to the process, how the Judge runs his or her courtroom and other factors. Ultimately though, the only way to have a divorce done quickly is for you and your spouse to reach an agreement through the assistance of your respective attorneys. This is where it becomes critical that the lawyers both share the common goal with the parties to be attentive and diligent in trying to reach an efficient and equitable resolution of all issues. Simply put, the more parties in a divorce fight, the more expensive and longer the process is going to take. Also, be weary of attorneys that continue to focus on having to do their “due diligence” before finalizing the divorce. You and your spouse should openly exchange all financial information, so as to avoid the attorneys having to spend substantial time and money in the discovery process. There will have to be an open exchange of all financial information for your attorney to properly advise you as to an appropriate settlement, but typically, hiding information only results in greater delay and more expense.

10. Talk to your spouse:                     There are divorce lawyers who will tell their clients not to speak with their spouse and that they should only communicate through lawyers. In certain, limited circumstances, that may become necessary, but typically that is more in the nature of a strategy designed to divide and conquer. It is in your best interest to try to come to as many agreements as possible, with the advice and direction of your divorce attorney, to avoid protracted litigation. This is particularly critical with issues pertaining to your children, as far as custody and visitation. No parent should want a Judge deciding his or her relationship with his or her children. Remember, the more you can agree upon with your spouse, the less you need to litigate over and the less you will have to spend in attorney’s fees. Attorney’s fees are seldom paid by one party or the other, but rather get paid out of the marital estate, even if it is from another parties’ income. Being reasonable and negotiating an agreement will make much more financial sense to you in the long-run.

Should you wish to discuss any of these general recommendations in greater detail, as it relates to your individual situation, please do not hesitate to contact me, James M. Quigley, at: 312.621.9700, or by email at: jmquigley@beermannlaw.com.