As I write this it seems like we are living in a world gone mad. People are raw with anger, hurt, pain and fear. Images of upset fill each newscast and color our days. Fear can be overwhelming and paralyzing, but fear can also be a motivation for change, or a call to action. In my work as an attorney, mediator and a collaborative divorce practitioner I deal with fear every day. Very frequently my clients report their fear of the unknown, fear of making a decision that will change their family’s life, fear of the divorce process and the legal system, fear of life after the divorce. Although I can’t erase the fear, I do help my clients manage their fears by educating them about the divorce process, the legal system, the different approaches to divorce and about the options they have. With information and education about the process I am able to empower the client to make important decisions through the divorce process – an experience that has lifelong implications for the couple dissolving their marriage.
The Covid-19 crisis has impacted the divorce process in Illinois though it is noteworthy to observe that through the pandemic some processes continued even with the physical closure of the courts. From end of March through end of June 2020 for the most part the in-person access to the Courts in Cook, Lake, DuPage, Will and many other counties was severely limited if non-existent. Currently Cook, Lake and DuPage County Courts remains accessible primarily via videoconferencing with some limited in-person access. All regular court dates were continued during the Court closures AND we are still in the process of rescheduling those original court dates and dealing with the delays. Emergency matters were heard either on a limited in-person basis or via videoconferencing and other electronic means. However, most courts allowed for final court appearances to conclude divorce cases, also called prove-ups, to proceed via Zoom videoconferencing. Quite remarkably, many divorces were able proceed using virtual technology. This creates some efficiencies for couples willing to engage in their divorce process in this way.
The impact of the Covid-19 crisis will be with us for quite some time. That includes the impact on the future operations of the court system. There will be significant delays in cases currently pending before the Courts. However, as of this publication the court in Cook and collar counties anticipate allowing for use of videoconferencing technology to assist with final court appearance where the parties reached settlement for quite some time. This development is an opportunity to still proceed with and finalize a divorce assuming the couple is able to reach an agreement. Mediation and collaborative divorce are well suited to assist couples during this time. Though it is true that divorce is not an easy experience, there are ways to move through it and as an attorney who has been involved in many, many cases, I remain dedicated to each client to help them strategically define their best path through the experience.
For people considering divorce there are some essential, initial considerations.
There are 4 common approaches to divorce:
- Kitchen Table Approach: Some couples initiate their divorce on their own without significant help from an attorney, mental health professional, financial advisor or other support. These couples often, naively, believe they can work through the process and dissolve their marriage with little acrimony and move on. While sometimes this is true, it is mostly not the case and I don’t recommend this approach to most people as the many variables in a divorce, especially when the couple has minor children, need to be considered thoughtfully for the good of everyone in the family.
- Traditional Litigation: Each spouse retains legal counsel and the two “teams” work through the negotiation, or litigation of the dissolution of the marriage. Some of the proceedings take place in a courtroom before a judge who decides the various factors that need to be considered. Often this is the best choice when one, or both of the spouses, is struggling with the notion of the divorce, refuses to consider alternative dispute resolution options, like mediation or collaborative divorce process, or when physical or psychological abuse is present. Sometimes one spouse is in denial about the prospect of divorce and the only way through the process is by using traditional litigation. Sometimes the spouses are unable to make the decisions, and need the judge to decide. In its most litigious form, this is the divorce depicted in the movies War of the Roses or Kramer Vs. Kramer.
- Some couples arrive at the decision to divorce but want some flexibility in the process. Mediation can be a good option for these couples. Mediated divorces are unique in that a trained mediator guides the decision-making and communication between the spouses. Generally speaking attorneys are not present during the mediation sessions, although there is an exception to every rule. Since the mediator is a neutral hired to help the couple arrive at an agreement, the mediator cannot prepare the legal settlement agreement which will be entered in court to finalize the divorce. Therefore, it is common to see at least 1 spouse represented by an attorney. It is important to note that divorcing spouses have conflicting interests, and when only 1 attorney is involved in the case, he or she represents one spouse, and the other spouse represents him or herself. Of course, ideally each spouse will be represented by, or at least consult with, an independent attorney.
- A growing area of divorce is Collaborative Divorce. This “kinder, gentler” approach to divorce offers great flexibility and confidentiality to the divorcing couple. In many cases the process begins with a spouse retaining a collaboratively trained attorney to represent him or her in the collaborative process. The collaboratively trained attorney can help her client prepare for a conversation with the client’s spouse where the possibility of the collaborative divorce is introduced, as well as educate the client about the process, and collaborative professionals, who depending on the complexity of the case, the spouses’ wishes, and their budget for the divorce process can include collaboratively trained attorneys, coaches, a child specialist (if there are minor children involved), and a financial neutral. A collaborative divorce is driven by the goals and concerns of the divorcing couple rather than merely by the requirements of the Illinois statutes or scheduled court dates. Moreover, since the divorcing couple arrives at their settlement agreements in a series of meetings, not in a courtroom, they have the flexibility and the support of the collaborative team to confidentially undertake the effort of dissolving the marriage, and structuring the best possible settlement for their family. At the outset of the collaborative process the couple agrees to fully and freely exchange financial information, as well as that in the event they are unable to reach an agreement, that the professional team will be “conflicted out” and that the couple will need to hire new attorneys to represent them in the traditional litigated divorce. The presence of mental health professional(s) (coaches, child specialist), ensures the clients have the support needed to focus on the process, and their future goals, and can work through their differences in a far gentler manner than via traditional litigation. In most collaborative divorce process cases, only once everything is agreed upon and settlement documents have been signed, is the final divorce decree entered in a court of law. This approach gives a family incredible privacy, greater control over the possible outcome and expense of the divorce, and an opportunity to craft a future that is based on their particular goals and needs, rather than a cookie cutter approach.
There is a best approach for each couple. Together with my clients we chart a course that makes the most sense based on their particular situation. It is my honor to be selected to represent clients during a stressful time in their lives and as we go through the process I’m fulfilled knowing I’ve helped a family find its footing when life is unexpected and challenging. I’ve also appreciated the ways the legal system has pivoted to support couples and families during this pandemic and believe the public will benefit efficiencies and improved processes that are unexpected but will be beneficial over the coming months and years.
Anna Krolikowska is an attorney in private practice in the metro-Chicago and North Suburban Chicago areas. She is a collaboratively trained attorney and a Fellow of the Collaborative Law Institute of Ililinois. Within her law practice Anna works with clients using mediation, Collaborative divorce process, or the litigated approach. To learn more about which strategy might be best for you contact Anna at firstname.lastname@example.org, or (847) 715-9328 to schedule a consultation. Follow Anna on Facebook.com/AttyKrolikowska