Don’t Take Sides In A Divorce
By H. Joseph Gitlin
Lawyers serve their clients best when they are objective advocates, not sympathizing moralists.
Of course we all take sides when representing a party in a divorce. But outside of your role as an advocate, don’t take sides on who is at fault in the marriage, and don’t be moralistic.
It was early in my practice in Woodstock, about five or six years out of law school, when I learned a very close friend of mine was having an affair and would be divorcing. This was a guy I had lunch with a couple of times a week.
I was distraught and angry with him, and I let him know how I felt. It took me some months to learn and realize that I knew virtually nothing about the dynamics of my buddy’s marriage and that I was wrong for taking sides and faulting him.
Illinois is a no-fault state. The Illinois Marriage and Dissolution of Marriage Act, enacted in 1977, provides that financial issues in divorce be decided “without regard to marital misconduct.” This phrase appears in the property distribution section (503) and the maintenance (alimony) section (504).
The IMDMA also applies the no-fault concept to child custody (now known as parental responsibility or parenting time). When a client asks me, “Don’t I get the kids because my wife committed adultery?” I pull out the statute book and read to him, “…the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” Section 602.5(e) and 602.7(c).
I explain that unless the conduct, including adultery, had an impact on the child, it is not to be admitted in evidence by the court.
Illinois is also a no-fault state when it comes to grounds for divorce. It became so in 1984. And in 2016 Illinois became close to a “pure” no fault state. “Irreconcilable differences” is now the only “grounds” for divorce in Illinois.
The moral issue is often, if not usually, of great significance to the “innocent” party. This is understandable, and you should acknowledge your client’s feelings. The Judeo-Christian tradition is that wrongs are punished. Often the client feels robbed of closure because his or her ex is not punished.
But Illinois law is a no-fault state. We lawyers should not lose our objectivity by over-identifying with the client. Doing so only magnifies any unrealistic expectations the client has about the outcome.
Forget tea and sympathy
If a medical condition causes me pain, I want my physician to acknowledge my pain, but what I need is treatment. I do not need sympathy in place of treatment. Clients need the same from lawyers in divorce.
I find it hard to deal with tea-and-sympathy lawyers. I admire their good intentions, but in some cases there over-identification with the client, and their failure to level with the client about the likely outcome, too often makes the case more lengthy and expensive than it would otherwise be.
Lawyers serve their clients best when they are objective advocates, not moralists. Indeed, taking a moralistic position is unprofessional.
H. Joseph Gitlin is now retired from the practice of family law. He is the original author of Gitlin on Divorce: A Guide to Illinois Matrimonial Law (LexisNexis). He is a laureate of the Academy of Illinois Lawyers.
Reprinted with permission (as updated to be in keeping with the 2016 changes to Illinois divorce law) of the Illinois Bar Journal, Vol. 95 #1 January 2007. Copyright by the Illinois State Bar Association, on the web at www.isba.org.