Few periods in life pose such a challenge as a divorce. Only spouses experiencing a marital crisis and a subsequent divorce know how difficult this period can be for everyone involved.
Things become even more complicated in case of a contested divorce. Spouses who disagree on whether or not they should end the marriage (or about other issues) often engage in frequent debates, not sparing each other or their children from unpleasant scenes. In some instances, couples involved in contentious divorces often also deal with domestic violence.
Unfortunately, contested divorce wreaks havoc on family relationships, destroying emotional bonds and leaving psychological wounds, especially with children. It also often destroys the family financially.
To learn how to choose a peaceful divorce and avoid the devastating consequences of a family dispute, below are five tips for navigating this challenging time with your spouse.
1. Talk With Your Spouse About the Prospects of a Peaceful Divorce
If no domestic violence or substance abuse is involved, use every opportunity to talk to your spouse about the prospects of a peaceful divorce. Communication can be slow and painful at first, especially if one of the spouses is having difficulty accepting that your marriage is essentially over. If you are in marital counseling, bring up the possibility of a peaceful divorce in your counseling sessions. After possibly overcoming initial rejection, emotional reactions, and periods of silence, sometimes both spouses eventually realize that divorce is inevitable. When talking about ending the marriage, consider the different legal options available. Litigation is a conventional tool for resolving divorce-related disputes. However, the court process inevitably involves undue publicity, meaning everyone has access to sensitive personal information. In addition, the process is financially draining because each phase (discovery, opening statements, witness testimonies, and closing arguments) carries additional costs due to a lot of attorney time and resulting hefty attorney and court filing fees. The court dockets are also often overloaded, which results in delays. You may end up waiting for months (or even years) to get a hearing date. An adversarial environment, typical for litigation, leads to even deeper division between the spouses, making the a cordial post-divorce relationship impossible. Children suffer long-term negative emotional consequences after seeing their parents fighting each other for years, and often being pulled into the litigation. As opposed to that, out-of-court methods focus on creating a peaceful atmosphere, enabling negotiations that lead to genuine resolution, preserving family relationships and asset. Amicable divorce helps spouses develop and maintain constructive relationships after the marriage ends, resulting in more effective co-parenting. Both spouses and children benefit immensely from a peaceful resolution of family disputes. In your conversations, always seek the lowest common denominator leading you to a non-adversarial and peaceful solution. Hopefully, you and your spouse can agree that an uncontested divorce would be best for everyone involved.
2. Consider the Most Effective Out-of-Court Methods
When talking with your spouse about ways to peacefully end your marriage, consider the most common (and functional) out-of-court methods. There are several options among alternative dispute resolution tools, but mediation and collaborative divorce emerge as the most effective and beneficial. Below are the answers to frequently asked questions regarding these non-adversarial divorce methods.
- What is a Collaborative Divorce?
Collaborative divorce is an alternative dispute resolution method allowing divorcing spouses to end their marriage peacefully and consensually. In collaborative law, each spouse retains an attorney, trained as a mediator and trained in a collaborative process, to represent them in divorce negotiations. Since each spouse hires an attorney in a court process – the crucial differences from litigation are that there is no court involvement, the attorneys are trained as mediators, and in the collaborative process, from the get-go, the approach is focused on the couple’s overall goals and an amicable divorce. The spouses and collaborative attorneys work together (collaborate) to achieve mutually beneficial outcomes. The process starts by signing a participation agreement in which spouses commit to acting in good faith and promise to invest their best efforts to settle. The focus is on transparency and a free flow of information, enabling the spouses to let off steam and exchange vital information regarding their separation. The process involves the participation of various experts: a divorce coach, financial advisor, real estate agent, forensic accountant, child therapist, etc. Their role is to give the couple the support they need and enable them to make informed decisions regarding their future. Another benefit of the collaborative law process is that, contrary to litigation, it allows the couple greater control over the settlement terms as well as over the dynamics of the case (scheduling of the meetings, etc.). Illinois Collaborative Process Act prohibits lawyers from representing the same parties in litigation if collaborative efforts fail, or the couple needs to return to court post-divorce for litigation. Similarly, a collaborative attorney must resign if their client fails to disclose all material information or falsely represents facts. The only court involvement includes filing the settlement agreement after successful out-of-court negotiations.
- Divorce Mediation – Is it a Good Idea?
Mediation is another alternative dispute resolution method, providing numerous benefits to divorcing couples. Unlike litigation, no state-appointed judge resolves a dispute. On the other hand, spouses do not hire lawyers to work together toward the settlement (like in collaborative law). The mediation involves a neutral third person – a mediator, chosen voluntarily by the parties. The process is confidential, meaning nothing revealed during mediation sessions will become part of the public record. It consists of four typical stages: introduction, opening statements, private, and joint sessions. Mediation allows divorcing couples to negotiate their differences with the help of a neutral mediator (usually a retired judge, attorney, or other professional). The spouses can hire attorneys to counsel and advise them through the mediation process. They will also need the help of an attorney to prepare the legal divorce documents and help them finalize the divorce case in the court system.
- What Does a Mediator Do in a Divorce?
Generally, the mediator does not have decision-making authority, meaning they cannot resolve the dispute by issuing a binding judgment. Also, they are not allowed to propose solutions or give legal advice. Their task is to stay neutral and facilitate the negotiations between the divorcing spouses. Some mediators conduct all sessions as a joint session. Others include a mix of private and joint sessions. In private sessions, a mediator talks to each party, going back and forth between session rooms. After evaluating each spouse’s arguments, the mediator holds a joint session, enabling the parties to negotiate the disputed matters. By creating a peaceful environment, the mediator motivates the spouses to bring offers and counteroffers until they settle.
- Collaborative Divorce vs. Mediation
Although both methods aim at resolving divorce-related disputes far from judicial decision-making centers, the difference between them is notable. Collaborative law involves lawyers both sides retain to help them negotiate the dispute. On the other hand, mediation’s focus is on a neutral third person facilitating negotiations. Despite attorneys being able to participate in mediation, they do not take such an active role in mediation sessions. They act as counselors, helping spouses get the most out of negotiations. However, the mediator takes the central part by motivating the parties to settle their differences and creating a friendly atmosphere where they can open up about the dispute. In contrast the collaborative process involves two counterpart lawyers collaborating and helping the couple negotiate a settlement. Collaborative attorneys are also trained as mediators, and they use their diverse skills to help the couple negotiate a settlement agreement. In mediation, a third impartial person is encouraging the settling process. When talking about the differences between collaborative divorce and mediation, there is one common misconception about mediation that deserves clarification. Namely, mediators can help you overcome disagreements and settle disputes. Eventually, they can assist you in writing up a memorandum of understanding. But only attorneys (or at least one attorney) can prepare all the legal documents (including the divorce settlement agreement), file the papers, and finalize the divorce.
- Divorce Mediation Checklist
Divorce mediation is a voluntary, flexible dispute resolution method. Although there are no rigid litigation rules in mediation, you should not take the process lightly. The outcome of the mediation sessions depends on the level of your preparedness. To increase the likelihood of success, make sure to go through the divorce mediation checklist:
- Gather necessary contact information for all participants in the process (mediator, family members, child specialists, financial experts, etc.).
- Plan mediation sessions on time and respect the defined schedule.
- Assemble in advance and bring necessary documents (court documents, financial statements, medical records, etc.).
- Define the payment terms with the mediator.
- Attend sessions and be open to compromise.
3. Choose the Right Collaborative Lawyer or Mediator
Choosing the right collaborative attorney or a mediator should be your next priority. Depending on the professionals helping you settle, outcomes can vary. If you opt for a collaborative divorce, you and your spouse will each need to hire a collaborative attorney. Although they represent opposite sides, your lawyers will cooperate in bringing you the best possible outcome. Remember that without each spouse hiring a collaborative attorney to represent them, they will not be able to use the collaborative methods to the divorce. Mediation is different. Spouses must agree regarding the mediator they wish to facilitate their negotiations. When choosing divorce professionals, always look for a local collaborative lawyer or a mediator. Check their website, clients’ impressions, and success records. Corroborate your findings with first-hand testimonies whenever possible. Lastly, conduct interviews with the best candidates before making a final decision, and make sure you pick the right professional for you.
4. Focus On a Peaceful Resolution
No matter which alternative method you choose, always focus on resolving your divorce-related dispute peacefully. That involves open-mindedness and readiness for compromise. Negotiations are inherent to both collaborative divorce and mediation. In each negotiation, you must be ready to move from your initial position toward an agreement. A peaceful divorce is not a zero-sum game. It is about compromising and understanding the other side’s perspective. Look at things from a different point of view to understand your spouse’s interests and needs. Instead of trying to conquer your adversary (like in litigation), seek compromise by making concessions. Focusing on a peaceful resolution, especially going through a collaborative divorce, couples have a greater chance of walking away from negotiations with a feeling of satisfaction. Collaborative divorce results in genuine conflict resolution, meaning couples are more likely to comply with agreements. Consequently, their post-divorce communication will open the way for a healthier co-parenting relationship, which benefits the divorcing couple, and especially the children.
5. Learn How to File for a Divorce in Illinois
Despite divorcing out of court, you and your spouse must know the basics of filing for a divorce in Illinois. The reason is simple. Collaborative divorce and mediation are effective, but there is no one-size-fits-all solution to all divorce-related disputes. When alternative dispute resolution methods fail, your last resort will be filing for a litigated divorce. You do not need to prove reasons for a divorce other than irreconcilable differences, because Illinois is a no-fault state, but you must follow the steps described below:
- Hire an attorney to represent you.
- Prepare the proper documents (the filing forms are different, depending on whether or not you have children).
- Collect necessary information (date of entering the marriage, addresses of both spouses, date when you separated, list of assets and debts, information about children).
- File the proper documents with the clerk of your county court.
- Serve your spouse by a sheriff or a private process server, or in limited circumstances by publication).
- Engage in financial disclosures and participate in discovery.
- Participate in court hearings and trial.
Unique Solutions That Fit Your Needs
Anna P. Krolikowska is a litigator, trained mediator, and collaborative attorney practicing law in Northbrook, Illinois.
Ms. Krolikowska understands that divorce is a challenging time for everyone involved. Adhering to the highest professional and ethical standards, she can help you resolve your dispute and achieve the best possible outcomes.
Whether you choose collaborative divorce or mediation, Ms. Krolikowska has your back. Please reach out today for a free 30-minute consultation.
