Collaborative Divorce helps people choose to end their marriage without destroying their family in the process. Collaborative divorce in Illinois provides a dispute-resolution process where spouses and their attorneys work together cooperatively to negotiate equitable settlements without going to court. The process focuses on constructive problem solving based upon the divorcing couples’ individual and shared values rather than on adversarial bargaining and court-imposed solutions. People use the terms Collaborative Law, Collaborative Practice, and Collaborative Divorce interchangeably. Especially with the 2018 adoption of the Illinois Collaborative Process Act, more and more Illinois divorce cases are being handled collaboratively.
How does a collaborative practice differ from a traditional divorce?
A collaborative divorce differs from a traditional divorce because in a collaborative divorce, collaborative divorce provides a financial incentive for a lawyer not to go forward with any contested issues. In fact, if the lawyer believes he or she must go forward with contested issues, each of the lawyers must ultimately withdraw from the client’s representation. The parties in the collaborative divorce always retain their ability to go forward with contested court proceedings. Yet this ends the collaborative divorce process. The lawyers must then withdraw from the representation.
How do you obtain the necessary information in an Illinois collaborative divorce?
The participants to a collaborative divorce complete a sworn comprehensive disclosure statement. In the traditional adversarial system, the parties often waste significant attorneys fees trying to force discovery issues. Lawyers refer to the legal steps that are taken as “201(k) letters, motions to compel, motions for sanctions,” etc. The collaborative process avoids these steps and relies on the good faith of the parties. The collaborative divorce facilitates direct communication between the parties. In a traditional adversarial divorce, if there is non-compliance with discovery, then one lawyer has his or her legal assistant generate a letter—referred to as a 201(k) letter—at a cost to the client. In collaborative practice, the divorcing couples completes “homework” far more directly because the lawyer(s) or financial specialist, etc., can directly request necessary information. The parties to a collaborative divorce promise to make full, honest and open disclosure of all relevant facts and circumstances.
What are the negatives of the traditional adversarial divorce process?
In a traditional adversarial divorce, one spouse files a suit the other for divorce (called dissolution of marriage in Illinois) and sets in motion a series of legal steps. These eventually result in a resolution achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The conflicts can take a toll on the emotions of all the participants, especially the children. Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith to achieve a mutually-agreed-upon settlement outside of court. Collaborative Divorce helps ease the emotional strain caused by the breakup of a relationship and protects the well-being of children.
What’s the approach used to settle a traditional divorce case?
In the standard divorce case, after discovery is exchanged, there will be a letter in which one party outlines the proposed principles of settlement. If this is rejected, the parties proceed to a “pretrial” or “settlement” conference. I use the term “settlement conference” because it’s more descriptive. The parties submit memos to the court, which the judge reads prior to the pretrial conference. The court then conducts a conference with only the lawyers and judge involved. The conference is in the judge’s office (chambers). There the judge listens to the attorneys for a relatively short period of time and then makes settlement recommendation.
What’s the downside of the approach used in a traditional divorce case?
Because of the nature of the court system, I have found that even when the lawyers provide a pretrial conference memo to the judge days before the pretrial conference, many judges don’t have the time to read the pretrial conference memo. Therefore, the judge will only have several minutes to consider the complexities of a couples’ married life and then make a recommendation as to howto settle the entire case. Each judge brings his or her biases to the table in making this settlement recommendation. For example, many judges have their rules of thumb. Sometimes these rules of thumb are fair and sometimes they are not. The bottom-line: even in the best of circumstances the court only has quite limited time to provide settlement recommendations. The settlement recommendations aren’t based upon the divorcing couples’ individual and shared values.
What are the costs of a collaborative divorce?
Every case is unique. Lawyers cannot predict with any pin-point accuracy the cost of divorce except in the simplest divorce case. Yet collaborative divorce costs less than traditional adversarial divorce–when collaborative divorce works. For example, in the leading book The Collaborative Way to Divorce the authors indicate in the subtitle that collaborative divorce generally has lower costs.
In a traditional divorce case, if I am in a county where the same judge would handle the settlement conference as the trial, isn’t there an advantage to learning the judge’s pretrial conference recommendations?
In counties including the counties where I predominantly practice including McHenry County, Lake County and Kane County, Illinois, the same judge who handles the settlement conference generally would try the case if necessary. So most clients believe that the judge will inevitably rule the same way at trial as the judge recommended at the pretrial conference. But sometimes this is true and often it’s not. Many times a court will decide differently once realizing that a short presentation at a settlement conference was not enough to give the judge a full flavor of the facts and circumstances of the case. Nevertheless, the party who is perceived to have “won” at the pretrial conference often becomes inflexible in negotiating further. That party may believe that he or she has little to lose by taking a case to trial. The lack of flexibility in the party’s positions following a settlement conference serves as a negative involving the tradition divorce settlement process.
What is the approach used in a collaborative divorce to settle cases?
The model used in collaborative divorce cases involves interest-based negotiations. It provides the tools to couples to enhance their ability to communicate during the divorce process and forward. The earliest interest-based negotiation “Getting to Yes” outlines the principled school of negotiations. Lawyers who use this method to negotiate divorce cases, do not try to emphasize positions. Instead, they emphasize principles. The traditional adversarial system focuses on competing predictions about what the court is reasonably likely to do. However, the needs and interests of the divorcing couple do not set the benchmark. Instead, the courts focus on maintaining predictable positions so that more and more couples will settle cases within this range of predictable positions. The collaborative divorce seeks to create scenarios that better serves the needs and interests of each participant in moving forward with their lives. Collaborative professionals try to envision options for mutual gain rather than concentrate on bottom-line positions. In doing so, the lawyers and the parties engage in interest-based or value-based discussions. Ideally in a collaborative divorce, the lack of positioning saves the parties funds in terms of the cost of litigation.
If there is no pretrial conference in a collaborative divorce, how is a case settled?
Rather than a pretrial conference, the lawyers conduct four-way conferences to help settle the case. The collaborative divorce process entails not just one settlement conference but a series of conferences. Traditionally, the lawyers and clients conduct a four-way conference after full disclosure of the relevant information. In these four-way conferences, each lawyer and his client will sit on opposite sides of a table and discuss settlement. One collaborative lawyer put it this way, “I like to say that we put the issue we’re working on in the center of the table, and we all focus on ways to resolve it–rather than seeing the other party as the problem and attacking him or her.” Ideally, this provides an entirely different tone in a four-way conference in a collaborative divorce case as opposed to the traditional divorce.
What happens once the parties to a divorce case reach an agreement in a collaborative divorce?
There is one court appearance. The parties then go to court to prove-up their divorce agreement (the marital settlement agreement). In this way, a collaborative divorce is exactly the same as a conventional divorce.
What if an agreement can’t be reached?
If an agreement cannot ultimately be reached the lawyers for the parties withdraw, and the parties hire new lawyers to prepare the case for trial.
Well, isn’t there a down-side to a collaborative divorce if an agreement is not reached?
Yes. If the parties can’t reach a collaborative agreement, there’s a certain amount of inefficiency. The divorcing couple must start the divorce process over with traditional adversarial counsel. Yet there’s also inefficiency when a client chooses another lawyer during the pendency of a case. I find that changes of lawyers occur with much higher frequency in adversarial cases than in collaborative law cases. This is because of the nature of the adversarial system. Often a client will have spent thousands of dollars on a temporary hearing only to receive results which are less than optimal. It is at this stage that many clients seek a second opinion or seek to swap horses in mid-stream. Because of the tools available in interdisciplinary collaborative practice — generally the divorcing couple does not need to resort to terminating the collaborative practice.
Does the lawyer chosen by my spouse in a collaborative law setting make a difference?
Yes. I’m often asked about happens if the other side hires a very good Illinois family lawyer – inevitably a lawyer whom I know well. Clients believe that they are well served if they have a good lawyer, but the other side has a lawyer with lesser skills. I reject this thinking. Consider a tennis analogy… If I am playing tennis with a player who is bad, my game doesn’t look good. But if I’m playing tennis with a player who is as good or better than me, I do far better. The same applies to divorce cases. Often with less experienced lawyers, much time spent is in trying to educate that lawyer with the law.
Are there times when collaborative law cannot work?
Yes. Lawyers will not recommend collaborative divorce when:
- There’s already an order of protection or where there’s a history of domestic violence.
- People who tend to blame others for all their problems without a willingness to accept personal responsibility tend to do poorly in a collaborative law setting. [But with skilled coaching and mental health counseling, they may be able to make effective use of the process.]
What if a divorce case has already been filed? Can a case still be handled collaboratively?
Yes. In 2018 Illinois adopted the Illinois Collaborative Process Act. This Act allows for a divorce case to be filed while minimizes the costs for court proceedings after filing. The parties to an Illinois collaborative divorce first sign a “collaborative process participation agreement.” Then the parties file a notice of the agreement after it is signed. That filing serves as an application for stay of the proceeding. Assuming the court grants the request to stay, essentially the only thing that the court can do is to provide a status report to the court.
Can collaborative law be used in a case where my spouse is the sole owner of his own corporation?
Yes. In business valuation cases, traditionally each party will retain their own expert to value the business. The experts will not work together. Each expert will usually charge a minimum retainer of about $10,000. I’ve found that generally the fees for each expert in a business valuation case will be in excess of $20,000. And the costs can run much higher. In collaborative divorce cases, the parties often agree to use a neutral expert.
How does collaborative law compare to mediation?
Mediation involves one “neutral” third party who helps the disputing parties try to settle their case. But the mediator can’t provide legal advice. And the mediator can’t advocate for either side. Collaborative practice allows clients to have their lawyers with them during the negotiation process, while maintaining the commitment to settlement as the sole agenda. Each client has the opportunity for quality legal advice and advocacy built into the process. Thus, collaborative divorce brings more tools to the table than does mediation. Each lawyer who handles a collaborative divorce will be trained in mediation. However, collaborative law is not mediation because in collaborative law involves a team practice focused upon the values and interests of the divorcing couple.
Are there a list of collaborative lawyers in Illinois?
Yes. The lawyers of the Gitlin Law Firm are trained collaborative professionals: Gunnar J. Gitlin and Stephanie Kasten have received training in collaborative divorce. Attorney Gitlin and Attorney Kasten are trained collaborative lawyers and serve as Fellows of Collaborative Divorce Illinois.
