Chicago Divorce Attorney Blog

Part One of this post was published on August 30, 2010

If we must converse or meet with your spouse, he or she will be asked to sign documentation attesting to our notification that we represent only you and not him or her, and that we cannot and did not give them any legal advice.

We also prepare all other papers that are necessary to start and complete the divorce itself.

We give you the entire settlement package to take home for your spouse's approval and signature. We think it is a good idea for your spouse to hire their own lawyer, or at least have the papers approved by a lawyer of their choice.

When everything is signed and returned to us, we file the papers with the court and get your hearing date.

You must be present in court with us on the assigned day and we will present your testimony and signed papers to the court for entry. Your spouse's presence is welcome, but is not mandatory because everything is pre-signed.

Typically, your divorce is finalized on the day we are in court.

Your divorce does not have to be expensive.

If you and your spouse believe you can work things out on your own, then our flat fee divorce allows you to contain the expense of processing your settlement through the legal system. It works like this:

Either you or your spouse comes to our office and retains us. We can only represent one of you and this is the only person we deal with.

You tell us what the two of you have agreed upon and we put it in writing in a formal marital settlement agreement that will become a part of your final divorce papers.

If you have overlooked some items that should be included in your papers, we will give you a list to take home to discuss with your spouse.

For your sake, and to prevent the appearance of a conflict of interest, we prefer to not speak to or meet with your spouse. We cannot give him or her any advice and this is best accomplished by having no direct contact at all.

Part Two follows in tomorrow's post.

TMZ has just reported Heidi Montag has just retained an attorney to begin divorce proceedings against her husband, Spencer Pratt.

The couple plans to begin mediation sessions within the next two weeks and they are shooting to get the entire divorce concluded in six months. TMZ did not mention if the couple had an ante nuptial or pre-nuptial agreement.

Mediation is a non-court settlement oriented process that helps disputing parties resolve their differences sensibly and without unnecessary legal complications or expense.
Mediation helps the parties negotiate the settlement themselves.The mediator, a neutral and impartial third person, merely guides the parties' one-on-one negotiations with one another. The mediator directs the flow of conversation in a manner that allows each spouse to present his or her concerns and settlement terms in the best possible light.

We all hope to avoid divorce court and mediation is intended to help us accomplish this. It creates a setting where settlement becomes possible. The mediator's training enables him or her to pose questions to the parties in a manner that helps them to listen better and to express their thoughts in a constructive manner, instead of a destructive one.

Mediation works. It tames anger and stubbornness and helps disputants to get their point across without aggravating one another.

You will never have any control over the fury and cost of your divorce if you cannot communicate properly with your spouse. Some suggestions for keeping your divorce cooperative are:

Try not to impose your values or biases on your spouse with emotion-laden statements such as, "A decent person wouldn't do what you did." Monitor your body language or facial expressions to avoid registering obvious disapproval of something your spouse says.

If you disagree strongly with your spouse's offer, do not put them down for suggesting it. Validate their suggestion as a possibility, politely explain why you disagree, and then ask for their help in coming up with "something we both might like."

If your spouse's answer is "no," keep in mind that a no is rarely final. Interpret their no as more of a starting point than as an ending point.

Always allow for a three-second delay before responding to something your partner says. This short delay indicates that you were listening to their words and that you took the time to let them sink in.

Be sure your spouse speaks more than you do. You can't negotiate with anyone until you know what they're thinking, and you can't know what they are thinking if they do not have ample opportunity to speak.

Divorce settlements fail when our biased view of things allows us to see only our own "truth." We focus so intently on the truth we are trying to explain, that we block ourselves from hearing what the other side has to say. Here's the real truth: We will persuade our spouse to be cooperative by listening to what they need to say, not by saying what we think needs to be said.

All too often there is a tendency to become hard of hearing during divorce settlement talks. We think we know what our spouse is going to say, we know it supports their view, not ours, and we know they are wrong. We do so much of our "listening" only to give us ammo for a "Yes, but..." response or to find something to attack. We don't give two hoots about what they think or why they think it and can't stand listening to a view contrary to our own.

Our soon-to-be-ex does not care about what we feel or think. They only care about what they feel and think. But we don't win arguments by talking, we do it by listening. No one ever changes their mind until they know they have been heard.

The key to using the friendly approach in divorce is to make your partner feel valued. If you do not attempt to do this, your problem will only worsen.

People find it difficult to quarrel with those that acknowledge their pain or concerns. Listen to your partner and try to show some degree of sympathy, empathy, or compassion for what they are feeling. Sympathy signifies a general kinship with another's feelings. Empathy is the ability to imagine oneself in another's shoes. Compassion implies a deep concern for another person's troubles.

All three show respect for your spouse's position, without invalidating your own and without actually validating theirs. If fact, you do not have to actually feel sympathy, empathy, or compassion. You merely have to sound like you do. This costs you nothing and could pay a huge dividend.

Displaying these feelings cannot always make things better, but a failure to do so will always make things worse. If nothing else, it is good business to make a sincere effort to sympathize (or at least feign sympathy) with your spouse's plight.

If you treat your spouse with dignity, they may return the favor. Show your willingness to compromise, and they may reciprocate. Someone has to be nice first or you are both heading for trouble.

The public is displeased with our divorce legal system. Its frustration is building to a point where one of two things is likely to occur: either people stop getting divorced or they find a way to get divorced without using litigation.

The first is not likely to happen, and the second is why it is time to try the cooperative approach.

Here's why things must change:

1. Society is demanding something different. The "I'm going to be my own attorney" sentiment (which is often quite risky) is becoming more and more widespread.

2. Lawyers' operating expenses and fees are not expected to decrease anytime soon - unless their landlords and employees cut their rates. (Fat chance.)

3. The number of divorces filed each year shows no sign of declining significantly.

4. People resent having to spend more on their divorce than they did on their wedding and have reached their breaking point.

This doesn't leave us many options. We simply have to find a better way to divorce, and the friendly and cooperative method is the logical choice. While it doesn't work for everyone, we really do not have any others to pick from.

At the beginning of a divorce, experienced divorce lawyers typically have a sense of how a judge in their county is likely to rule when the case gets to trial some 12-24 months later.

Collaborative law practitioners meet and hammer out a mutual understanding of what they believe the court will do and guide the parties toward a negotiated resolution that matches the anticiated court result.

This clears the way for the parties to reach a settlement in 3-4 months instead of having to wait for the case to run its course.

You may ask, "If it's so easy, why doesn't everyone get divorced this way?" The answer is tis due in part to the unique negotiation training that collaborative lawyers receive, and because not everyone is capable of comprehending their spouse's position.

Collaborative divorce law practitioners slowly and methodically educate the parties as to the law and to both sides of the issue. When reasonable people are treated with understanding and respect, they become flexible and inclined to alter their settlement position to conforms to the legal standard that applies in their case.

The competitive nature of our non-collaborative, traditional divorce system, in contrast, encourages the spouses to perceive the law, the facts, and the outcome of their case differently. This approach breeds the hostility, frustration, delays, and expense that the public is fed up with.

In some instances, people use the term "cooperative divorce" to depict all three of the anti-war divorce processes: Cooperative divorce law, divorce mediation, and collaborative law.

However, as some of earlier posts indicate, cooperative divorce law is now its own stand-alone approach to conflict resolution. It is our third and separate out of court settlement approach to divorce.

When do people use cooperative divorce law in favor of collaborative law?

1. When the parties do not want to use mediation and collaborative divorce not yet reached their locale;

2. When the parties want to stay out of court and the other lawyer is not trained in the collaborative approach;

3. When you know your spouse is stubborn, mean, or generally difficult to deal with, and you do not want to have to hire a new lawyer when the negotiations fail;

4. When the parties or the lawyers do not wish to be bound by the rules and mandates of collaborative law; and,

5. When the parties or the lawyers anticipate the case will wind up in court, but want the parties to experience the cooperative process in order to calm things down, minimize ill feeling, and model behavior that is conducive to compromise.

Both mediation and collaborative divorce law save you time, energy, and money as compared to taking your case to court and having a judge tell you who will get or give what to whom

Many believe that these non-court alternatives cost about 25% of what a contested divorce costs, and they finish three to four times quicker.

As a rule, collaborative divorce costs more than divorce mediation, but it still costs significantly less than going to court. However, this is not to say that divorce mediation is inexpensive.

There are two disadvantages associated with mediation that are not present in collaborative law.

In mediation, the parties still have legal costs. Someone has to process the mediated agreement through the court system. In addition, mediation often has the effect of making some spouses feel alone, untrusting, or "over their heads." Many of us need on-the-spot support when making life changing decisions.

In collaborative law, each party has an attorney sitting next to them in real time and throughout the entire process.

The second structured "friendly" approach to divorce is collaborative law.

Unlike mediation, where the divorcing parties use a neutral and impartial person to guide them during their settlement discussions, collaborative law uses the parties' two attorneys to do the same job.

Collaborative lawyers do not perform traditional legal work for their clients. They limit the scope of their representation to that of negotiation guides for their respective clients.

The lawyers' jobs are to assist the parties in reaching a non-court settlement and they sign an agreement with the divorcing couple that prohibits them from ever going to court on behalf of their clients (except for the entry of routine papers that both parties agree to in riting, and in advance).

If either spouse refuses to settle out of court, the services of both lawyers are terminated immediately and the parties must go into the court system with new representation.

Collaborative lawyers are not neutral and impartial. Their role is to give legal advice and direction to their individual client only. The lawyers are present during the parties' negotiations to guide their clients and to help the parties from derailing their hopes for a sensible settlement.

Essentially, collaborative divorce law practitioners do the same job as mediators, but also furnish on-the-spot legal services to their client at the same time.

If a divorcing couple wishes to avoid a lengthy and costly legal ordeal, there are now three out-of-court resolution alternatives available to them.

The first structured "friendly" divorce settlement process to come into being is mediation. The key player in this settlement model is the mediator - a neutral, impartial person whose role it is to help the couple to communicate with one another in a non-argumentative and sensible manner.

Divorce settlement negotiations usually involve many emotional or other negative factors that make it difficult for the parties to remain level-headed. Mediators are trained to manage and defuse these negative influences so that the parties can keep their negotiations headed in the right direction.

Mediators have no power to make decisions; their job is to help the parties create a settlement that both find acceptable. The mediator makes sure that each party presents his or her settlement wishes in the best possible light. To do this, they use various persuasion techniques, most of which are among the various insights and tips mentioned in the Eye Opening Insider Negotiation Tips catogory of this blog.

The success of divorce mediation is indisputable. However, it is no longer the only non-court settlement model that is available to parties in conflict. It is now joined by two other effective, time and money saving, non-court negotiation processes: Cooperative Divorce Law and Collaborative Law.

It is surprisingly difficult to effectively discuss a divorce settlement with our spouse. One reason for this is that we come off with a defensive attitude at the very start of these conversations. We unwittingly make ourselves appear unreceptive.

Our adversarial culture plants a distrusting bias in our mind. It tells us that divorcing couples are out for all they can get and are not above getting cute when it comes to money. We recall hearing of relatives or friends who got the short end of the stick in a divorce or who managed to get a better deal past the other party.

These stories of past divorces put us on heightened alert and cause us to arrive at the bargaining table with an in-your-face attitude of negativity and distrust. This puts our spouse on the defensive right from the start, and when they are in a defensive mode, they are anything but receptive. Their defensiveness fuels ours and things can easily spiral out of control.

Defensive people are edgy, difficult to please, and are not at all inclined to entertain someone else's settlement wishes. As a result, without outside help, most of our who-should-get-what-in-the-divorce conversations are doomed from the start.

Cooperative divorce, collaborative divorce, and mediation take the edge off and allow us to communicate safely.

When divorce cases end up in court, they are by definition adversarial situations. Divorce courts are part of the civil justice system. Since this system is adversarial, so are the divorce courts.

The thesaurus associates these words with adversarial: hostile, antagonistic, conflicting, opposing, nail-biting, nerve-racking, scary, intimidating, menacing, frightening, chilling, macabre, terrifying, bloodcurdling.

Because the U.S. Constitution prohibits taking someone's property without due process of law, a divorce case, like other civil court matters, essentially requires an adversarial approach. The legal system's traditional rigid culture and formality add all sorts of apprehension and anxiety to an already combustible mix. This happens even when the divorce papers do not place blame on either party.

The role of the court is to conduct a trial to determine which partner will get their way. This requires both sides to gear up for trial, routinely spending months and lots of money preparing for something that probably won't happen.

With a trial on the horizon, an excruciating experience becomes more excruciating. One side will win and one side will lose. The brutal truth about a divorce case that goes to the adversarial arena of a trial court is that no one wins. Everyone loses.

Cooperate, collaborate, or mediate - do not litigate.

What Happens when a Cooperative Divorce Law Case Goes to Court?

No matter which approach you use in your divorce, it is not always possible to persuade your soon-to-be ex to agree a divorce settlement that is acceptable to you.

If this occurs in the cooperative divorce law model, the attorneys are permitted to accompany their clients into the court system and litigate on their behalf.
(This is prohibited in collaborative divorce where, if settlement attempts fail, the parties must replace the collaborative lawyers and hire new lawyers to take their case to court.)

Typically, when a cooperative divorce moves into the court system, the parties are still likely to experience a less costly and less stressful divorce than they would have experienced had they started their divorce by going directly into litigation as most people do.

This is because their prior agreement to cooperate tends to carry over into the court system. It tones down the normal anger and friction of divorce. The parties leave the cooperative process with less resentment, less distrust, and with a much better understanding of divorce and of how it works.

Being cooperative at the outset gives them the opportunity to vent their feelings. and this enhances their chances of reaching a compromise. Rather than seeing their divorce as a winner take all proposition, they now comprehend the mutually beneficial aspects of meeting one another half way.

They appreciate the wisdom of attacking their problem together, rather than spending their energy, time, and money attacking one another.