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.

 

Ending the Marriage

The end of the marriage can be a difficult, often traumatic experience. You will find new paths and new horizons. However, ending your marriage does not always end the relationship with your former spouse. Especially if you have children together. You need to forge a new path forward. Often you can even enjoy a respectful and open communication. How is that possible?

For many couples, one of the main reasons for divorce is lack of communication, or lack of good communication. Ironically, for many couples the key to a better divorce and successful post-divorce relationship is better communication and cooperation. The answer is collaborative divorce.

But first, let us take a look at what does not work.

Divorce Litigation

Traditional litigation involves an open confrontation between the disputing parties. Opposing attorneys engage in an open court fight, trying to outsmart each other. The divorcing spouses become part of a heated legal battle, where there is often little or no regard for the children’s well-being and post-divorce relationship. Since the court process is public, litigants often reveal sensitive personal information about their spouses. Airing dirty laundry in front of the public eye contributes little to improving a co-parenting relationship in the future. When children are involved, the harmful effects of litigation amplify. Watching their parents fight over alimony or custody, using dirty tricks against each other, leaves deep emotional scars and trauma. State-appointed judges typically have little time, resources, or knowledge to deal with the psychological aspects of divorce. Judges are supposed to focus on the best interest of the children in deciding custody, but that also means promoting involvement of both parents in the kids’ lives whenever possible. On the financial side the battles often revolve around what is or isn’t marital property or debt, valuation of assets, how to divide those assets, and whether to order alimony or another type of financial compensation, like child support, and how much of it. Litigating divorce means spouses undergo an exhausting discovery process involving gathering of financial documents and depositions or questioning under oath about their case, opening statements, witness and expert testimonies, and closing arguments. Each phase carries additional costs, pushing overall expenses to astronomical figures. Besides, undergoing the court process is time-consuming because even getting an initial court hearing date can take months. Consequently, waiting for a final divorce judgment often lasts several years.

Once again, the answer is collaborative divorce.

Insiders Guide to Collaborative Divorce

To help you understand the specifics of the collaborative divorce process below is a guide based on an extensive experience of a distinguished Illinois collaborative attorney, Anna P. Krolikowska.

1. What is Collaborative Divorce?

Collaborative divorce is an out-of-court method for resolving divorce-related disputes. In collaborative law, each spouse hires an attorney, like in litigation. But, unlike litigated divorce, there is no confrontation between the parties. Collaborative attorneys work together to support the couple in resolving their dispute privately, without court intervention. They provide their respective clients with information regarding their legal options on issues related to the marriage and divorce and help the spouses find common ground and resolve contentious issues through negotiation, open communication, and collaboration. Collaborative divorce involves not only attorneys but also experts and consultants from various branches, who might be helpful to the couple in making their decisions. For example a financial neutral can assist the couple in identifying potential financial settlement options, while a coach can assist with processing the emotions related to tte death of their marriage, remain on track during the collaborative divorce process and transition to a new future. The Illinois Collaborative Process Act (2018) governs the process of divorcing out of court and its central principles. Anna was one of a handful of attorneys involved in writing the Illinois Collaborative Process Act (2018) and lobbying on behalf of the Illinois State Bar Association for its passage in Springfield, IL.

2. The Goals of Collaborative Divorce

The principal goal of collaborative family law is creating a settlement agreement tailored to a particular family in a respectful and supportive environment while avoiding adversarial court proceedings. Collaborative divorce is an attempt to resolve a family dispute voluntarily and privately, without government involvement. The underlying principles of the collaborative approach are honesty, integrity, transparency, cooperation, and professionalism. Spouses promise to invest their best efforts in creating an agreement for their family and resolving contentious matters in a constructive and respectful manner. In contrast to litigation, the collaborative divorce process is future-oriented. Instead of dissecting the past and finding culprits, collaborative divorce deals with post-divorce relationships. Attorneys in collaborative divorce work shoulder-to-shoulder with child psychologists and other experts to ensure children go through the process without harm. The collaborative approach minimizes negative social, financial, and psychological consequences for everyone involved, especially children. This out-of-court method focuses on promoting settlement and maximizing the chances for positive outcomes. Ensuring successful (or at least workable) co-parenting relations between former spouses is one of the main goals of collaborative divorce. Collaborative attorneys work toward restoring an emotional and psychological balance between the spouses and strengthening their self-determination and integrity. Using their psychological and communication skills, collaborative lawyers set the atmosphere in which spouses can freely and openly communicate, overcoming differences and reaching a settlement. Finally, the process as a whole is carefully tuned to resonate with both the children’s and the parents’ best interests.

3. No Court Intervention

Spouses participating in a collaborative divorce agree to exchange all material information and disclose facts relevant to their divorce freely and voluntarily, without external compulsion. The essence of collaborative law is engaging in informal meetings and discussions and communicating productively using all means available. That is a stark contrast to litigation, where parties disclose and exchange information in a rigid discovery process, while communication is possible only through subpoenas and formal court hearings. Next, divorcing couple encourages their attorneys and other experts involved in the process to cooperate closely. The key to understanding collaborative divorce is the role of attorneys and consultants. They all work toward one goal – helping the couple settle their divorce out of court in a manner determined to be fair and equitable by the couple and not by an external decision maker, like a Judge.

4. Limitations of the Process

The collaborative law process has its limits. Despite the undisputed benefits, divorcing spouses must be aware that even collaborative law cannot resolve all the issues that led to the dispute. Even though there is no better method for addressing underlying problems that cause divorce, no one can guarantee collaborative divorce process will result in a divorce agreement, or ultimately resolve distrust, tensions, and other irreconcilable differences between the spouses. Spouses should understand that improving their communication and strengthening their co-parenting skills depends primarily on themselves. Collaborative attorneys and external consultants, like coaches, or financial neutrals, are here to help, but they cannot support the couple every minute of every day. Divorcing spouses should also be aware that participating in the collaborative divorce process does not mean you must renounce your interests, or surrender them to the other party’s interests. The collaborative divorce process is built around the divorcing couples goals, concerns and fears, and ultimately the divorcing couple decides what that means and what an equitable agreement looks like. Also, engaging in collaborative efforts does not imply that attorneys represent both spouses. On the contrary, collaborative attorneys have fiduciary duties only to the party that hired them. Their job involves close cooperation with the other party’s attorney, but ultimately they own loyalty only to their clients, representing their best interests.

5. Preserving Integrity

Preserving the integrity of the collaborative divorce process is essential. Participating in collaborative efforts is a sign you and your spouse want to take your dispute resolution to a higher, more respectful and considerate level. You reject the alternative – engaging in an all-or-nothing court battle that means one of you goes down no matter the cost and the damage caused to the family. Instead of fighting against each other, you choose to work together toward the same goals. By starting the collaborative process, you have already won the first victory over your inherent combative instincts. Even if you do not resolve all of your issues through the collaborative process hopefully you will be able to salvage some of the work done. Of course, ideally you want to resolve all of your divorce issues and finalize your divorce process. Statistics maintained by the International Academy of Collaborative Practitioner indicate that roughly 90% of couples who begin collaborative divorce process finalize their divorce through the collaborative process. But even those couples who are unable to finalize their divorce through the collaborative process might be able to salvage some of the work done, for example by asking a judge in their divorce case to enter a parenting judgment which they created through the collaborative process. Something is better than nothing.  As the couple undertakes a collaborative process,, the parties and the attorneys work to protect the privacy and dignity of the spouses, their  children, and everyone involved.

6. Conducting in Good Faith

The parties to the collaborative process commit to acting in good faith and investing their best efforts to settle. By signing the participation agreement, both spouses agree (and oblige themselves) to reveal and share all material information related to the case (income, assets, debts, accounts, etc.). The key to a successful collaborative process is free and open communication. Collaborative lawyers encourage parties to express their emotions, desires, needs, and fears. Parties use their best efforts to understand and sympathize with the other side’s position. The collaborative process differs from litigation in one respect – no formal discovery in collaborative law, meaning no coercive legal mechanisms are available to ensure parties reveal financial and other relevant information. Instead of official discovery, parties use informal discussions and meetings to exchange materials and disclose facts. Because there are no state-regulated mechanisms for compelling the party to provide crucial information, collaborative law relies on each party’s integrity and sense of honor. The divorcing couple can also hire a financial neutral, who as a member of the collaborative team, reviews all the financial documents and raises questions, brings up discrepancies, and helps to brainstorm and analyze possible divorce settlement scenarios. Collaborative divorce achieves transparency through frequent communications, free disclosure of financial documents, assistance of collaborative professionals and the so-called team meetings that occur throughout the collaborative divorce process. The goal of the team meetings is to discuss the matters openly with the support and assistance of the professionals.

7. The Role of Collaborative Attorneys

Collaborative attorneys have a different role than their litigation colleagues. Rather than representing disputed parties in an adversarial process, collaborative attorneys work to find common ground between their clients. Similar to trial lawyers, collaborative attorneys have a client-attorney relationship with fiduciary duties and must represent his or her client’s best interests. What differentiates collaborative attorneys is their additional training as mediators and collaborative professionals and their commitment to assisting the divorcing couples through the collaborative process rather than litigating all issues with a win at all cost mindset. While zealously representing their individual client’s interests, collaborative attorneys work side-by-side with their counterparts to help their clients arrive at an agreement that works for the divorcing couple. Collaborative divorce attorneys are peacemakers and problem solvers. Their primary responsibilities are to ensure that their clients have all the information necessary to make informed choices, are able to advocate for themselves, and craft a divorce agreement specifically tailor to their and their family’s needs. One of their key aspects of collaborative divorce process is transparency. Under Illinois law, collaborative attorneys will encourage their clients to disclose information, and ultimately must resign if their clients intentionally misrepresent material facts or fail to disclose relevant information. The collaborative participation agreement spouses, attorneys, and all collaborative professionals sign at the start of the process provides that they cannot provide additional services if the collaborative process fail. In case of the attorney’s that means that they cannot represent the same client both in collaborative process and any future litigation.

8. The Use of Experts and Consultants

Experts and consultants play a significant role in the collaborative law process. Dealing with demise of a marriage, custody, co-parenting, division of marital property and debts, alimony, and other complex issues bring with them emotional, financial and legal considerations. As opposed to litigation, where each side hires its experts to confront the other party’s expert before the court, collaborative law offers a different approach. Namely, as needed in a particular case, the divorcing spouses retain joint neutral experts (child specialists, financial advisers, therapists/coaches, appraisers, actuaries, etc.) to provide expert opinions on a specific complex or contentious matters. Parties then use the information they receive as data points for further negotiations. One of the specifics of collaborative law is that expert parties hired during collaborative divorce cannot participate in future litigation between the same parties.

9. Confidentiality

Confidentiality is one of the cornerstones of collaborative divorce. By signing the participation agreement, spouses, their attorneys and all other professionals agree to maintain the parties’ privacy and confidentiality and minimize which information revealed during the collaborative divorce process will become part of the public record. The same rule applies to experts and consultants involved in the process. However, the secrecy does not extend to information related to actions that constitute child abuse, aim at causing irreparable financial damage, or violate the rules of an attorney’s professional conduct.

10. Dealing With Children’s Issues

Children’s well-being is one of the central concerns of collaborative law. The divorcing spouses who choose collaborative divorce process recognize that the distrust, disharmony, and marital crisis that led to the divorce is unrelated to their children. Hence, resolving the dispute should not negatively affect children’s peace of mind or contradict their best interests. The collaborative law process comprises mechanisms protecting the emotional and psychological integrity of the youngest family members. It assists parents in shielding the children from the challenges their parents experience during the divorce. To that end, participants of the collaborative process invest efforts in promoting caring and loving relationships between parents and children and respectful communication between parents. Any details related to the divorce are intentionally not disclosed to, or discussed with the children.

11. What Are Temporary Agreements?

Temporary agreements refer to the arrangements parties make during the process regarding their rights and obligations. To promote certainty and avoid arbitrariness, collaborative attorneys encourage divorcing spouses to agree on how to treat assets and liabilities, child issues, and their conduct during the collaborative process. The arrangement is temporary until the parties finally settle, resolving their divorce-related dispute. However, the collaborative team frequently check-in with the spouses to see if they would like to modify the temporary agreements in any way as they progress through the case. For example, this gives the parents an opportunity to try out multiple parenting schedules to find the best schedule for their family. Once the couple arrives at their best parenting schedule, that particular schedule is incorporated into the parenting judgment, which will be submitted to the court for entry.

12. Withdrawal of Collaborative Attorneys

The Illinois Collaborative Process Act provides that collaborative attorneys can withdraw from the case at any time, regardless of the reason. That is separate, and apart from an attorney resigning the case because the client refuses to disclose material information. In fact, an attorney can withdraw from a case regardless of the process, whether it is collaborative process, mediation or litigation for a number of reasons. A client also has the right to ask an attorney to withdraw from the case, or to hire a new attorney.   In case of withdrawal, the collaborative attorney can leave at their sole discretion without providing reasons. However, they must send notice in writing to the other party and their attorney. Withdrawing from the representation does not terminate the collaborative law case. The party whose attorney has withdrawn can hire a new collaborative attorney and continue the collaborative process.

Final Settlement Enforcement

The process ends by settling the dispute and signing a a parenting judgment and a marital settlement agreemeent. Until the agreement is signed, the parties can change collaborative attorneys or leave the process altogether, turning to the court. That reflects one of the principal aspects of collaborative law that litigation lacks – control over the process. The parties present the final signed agreements to the court for entry. Following review of the settlement documents, and in some court systems either an in-person or a virtual court appearance, the judge enters the settlement agreements and finalized the divorce case .

13. Terminating the Collaborative Law Process

As mentioned above, either party can unilaterally terminate the collaborative law process. They must give notice (in writing) to the other party and their attorney. Once the collaborative process has been terminated, either party may file a petition for divorce with the court. The person filing for divorce is called the Petitioner. The other spouse is then called the Respondent. The Respondent will need to be served with a summons and the divorce petition. Once served with the divorce petition and summons the Respondent has 30 days to file his or her written response with the court. As a reminder, the collaborative attorneys cannot represent clients in subsequent litigation, and each party will need to hire a new attorney.

The Attorney That Can Make a Difference

The principles laid out in this guide provide a framework for a successful collaborative law process. Reading carefully, you will notice that one principle prevails over others. Namely, the entire effort depends on the choice regarding the collaborative attorney. The right collaborative attorney can make a difference between an effortless resolution of your case and a complete waste of your time.

Anna P. Krolikowska is an Illinois collaborative attorney and family law professional with years of experience dealing with most contentious family matters. As a former litigator, Ms. Krolikowska understands the difficulties and struggles of those who undergo family crises, and how to help them navigate the often challenging and nuanced divorce process.

She is committed to providing a customized approach that fits their individual needs while upholding the highest collaborative law ethical standards. With Ms. Krolikowska on your side, you can rest assured your collaborative law efforts will yield the best possible outcomes.

Please reach out today to schedule your consultation.

What is Collaborative Divorce?

Before getting into the specifics of speaking to your spouse about collaborative divorce, let us briefly outline the main characteristics of this alternative dispute resolution method.

A collaborative divorce is a legal process of dissolving a marriage in which each spouse retains their attorney to work together towards reaching a fair and mutually beneficial settlement.

In some cases, collaborative divorce cannot yield positive outcomes due to a history of domestic violence, or refusal by one or both of the spouses to engage in the collaborative process in good faith  – going to court and letting the state-appointed judge resolves the dispute then seems like the only solution.

However, for spouses willing to sit at a negotiation table, or in a virtual session and bridge their differences through constructive talks, out-of-court divorce appears most suitable.

Knowing the basics, take a look at tips you can use when talking with your spouse about collaborative divorce:

1. Present It As an Option Worth Considering

When persuading your spouse to use collaborative divorce process to resolve your divorce-related dispute, portray it as an alternative to traditional litigation. Present the court process, highlighting its flaws. Then compare it to a collaborative divorce. Start by explaining that litigation is an adversarial, often vindictive process in which two sides fight over access to the kids, and/or who wins financial compensation and other benefits. The publicity of litigation means everyone has access to sensitive personal information. The process is emotionally and financially draining because each phase (discovery, opening statements, witness testimonies, and closing arguments) carries additional costs due to attorneys, experts and court filing fees. Because of the heavy caseloads, you can wait months (or even years) to appear in the first court session. The delays in the already overburdened court system were exacerbated even further throughout the Covid-19 pandemic. As a vindictive process, litigation cannot bring reconciliation and produce positive psychological effects. Instead, it can ruin relationships, leaving deep emotional scars on children who suffer the most from seeing their parents’ combative behavior, or worse, being pulled into their parents’ divorce process. In contrast to litigation, out-of-court methods provide flexibility, effectiveness, simplicity, and privacy, offering numerous benefits litigation lacks. Finally, the differences between conventional court procedures and collaborative divorce should be sufficient to convince everyone to choose the latter.

2. Emphasize the Benefits of Staying Out of Court

After presenting the flaws of traditional litigation, then emphasize the benefits of staying out of court. By signing a representation agreement, spouses commit to acting in good faith, sharing financial information, and promising to invest their best efforts to settle. The collaborative divorce attorney cannot represent the client in court if the collaborative divorce fails—which is another benefit of this method. Your collaborative divorce attorney is committed to helping you success in your collaborative divorce process. Furthermore, the collaborative divorce process is transparent, enabling the free flow of information between the disputing spouses. The rules of collaborative law require parties to disclose all material information and accurately represent facts. Unlike litigation, spouses engaging in collaborative divorce can rest assured because their personal information remains confidential. Finally, collaborative divorce means you will not be required to appear in court – except once, for a prove-up, when your settlement agreement is preseted to a judge and your divorce judgment is entered. That is a pro forma hearing, where your attorney’s will ask a few basic questions, to which you already know the answers, so that the judge can finalize your divorce. There are also counties in Illinois, where you can avoid even appearing in court for the prove-up, and finalize your divorce by submitting the finalized settlement agreements and affidavits for the judge to review and approve.

3. Focus on Lower Costs

Litigation is known as a financially draining process. Compared to court procedures, collaborative divorce is far less expensive. Unlike litigation, there are no endless motions and pleadings, discovery, adversarial hearings, and unpredictable costs. Instead, attorneys, and often other professionals, like financial neutrals or coaches, work shoulder-to-shoulder to bring about a mutually beneficial settlement, and built-in efficiencies into the process to save you time and money . In doing so, they engage in informal communication, prep and help you prepare for all collaborative, and utilize the services of other professionals. For example, a financial neutral can be much more efficient not only in reviewing the financial information, but at helping the couple and their collaborative attorneys identify and examine settlement options. This approach costs significantly less than discovery in a litigated divorce. No court filing fees are involved, helping spouses settle their disputes timely and cost-effectively.

4. Identify Common Incentives

Speak to your spouse openly about common incentives for initiating a collaborative law process. Apart from rare cases (with a history of violence, or refusal to engage in collaborative process in good faith), it should be clear that both spouses have strong incentives to resolve disputed matters out of court. Couples can have different motives for accepting an out-of-court divorce. While some prefer the lower costs of collaborative divorce, others choose it because of its reconciliatory effects. Therefore, knowing common incentives between you and your spouse is crucial for initiating the collaborative divorce and persisting until you settle the disagreement.

5. Highlight the Non-Adversarial Aspect

Collaborative divorce resembles litigation because attorneys representing each party are involved. But there is a difference – collaborative lawyers cooperate in helping their clients negotiate disputes. No third person resolves the conflict. The spouses decide what divorce settlement terms work for them and their family. Spouses invest effort in good faith negotiations to resolve the matter with the help of collaborative attorneys in a non-adversarial procedure.

About Anna Krolikowska

Anna P. Krolikowska is a distinguished collaborative divorce attorney practicing law in suburban Chicago. Her main office is located in Northbrook, Illinois, with satellite offices in Northwest and West suburbs. Anna also offers virtual appointments.

In her years-long career, Ms. Krolikowska established a reputation as a top-notch negotiator with a proven record of success.

Upholding the highest ethical and professional standards, she will commit to representing your interests while cooperating with the other side’s attorney in bringing the best possible outcomes.

She has been recognized as one of the Best Lawyers in America 2023 (U.S. News), a Super Lawyer 2019-2023), and Top 50 Women Lawyers 2021, 40 Under 40 Lawyers 2019, and a Leading Lawyer 2021-2022 by the Chicago Daily Law Bulletin.

 

Divorces can be challenging.

Every marriage is different. People decide to live together for various reasons. Sometimes it is true love and affection; other times, financial or business-related interests play a decisive role. Consequently, the nature of marriage relationships varies, and each marriage is unique.

Similar to marriages, divorces also differ. Some divorces involve dividing complex financial assets, while others involve children and are emotionally charged or even violent.

In any case, divorce represents one of the most difficult periods in everyone’s life. Undergoing divorce poses multiple challenges—emotional, financial, and legal.

Regardless of the intimacy between you and your spouse, ending a marriage can be emotionally devastating. That is especially true if children are involved. Watching their parents divorce can leave deep emotional scars and negatively affect children’s well-being.

The financial aspects of divorce are not less stressful. Instead, the focus is on dividing and distributing marital property. That can be a burdensome process, especially in high-net divorces, involving investments, valuable collections, stocks and bonds, multiple real estate properties, professionals, and family businesses.

The complexity of divorce from a legal standpoint depends on which divorce method you choose. For example, opting for litigation puts additional stress on an already challenging life event. Undergoing complex litigation can last for years, and the expenses add up during each phase of the case. Most importantly, the court process is not set up for achieving long-term positive goals such as effective co-parenting.

See below how traditional and alternative divorce processes differ and how a collaborative divorce attorney can help you experience a less stressful divorce.

Litigating a Divorce is Painful.

Divorcing in court is a traditional way to end a marriage. Before alternative dispute resolution methods appeared, litigation was the only way to dissolve a marriage—despite its numerous flaws. Litigation is an adversarial process involving two opposite parties fighting over who wins the case. That battle can often mean a struggle between the parties and their attorneys, each representing the other in a bad light.

Naturally, fighting for financial compensation in court does not contribute to any long-term positive goals. The process is public, so unless the court file is sealed, everything parties share in court (often following court orders) becomes publicly available. It is unusual for a divorce case file to be sealed and there have to be compelling reasons. Since divorces involve disclosing sensitive personal information, the publicity of litigation can only make things worse—ruining reputations and leaving emotional scars on children.

In addition to the emotionally draining aspects of litigation, divorce in court is a timely and costly enterprise. Proving divorce allegations in court is a burdensome process consisting of the discovery phase, including written discovery and often depositions, followed by trial, which includes opening statements, witness testimonies, and closing arguments. Sometimes, expert witnesses are necessary. Strict evidence rules and the involvement of attorneys and experts result in an enormous financial strain and a loss of time.

As a contentious and adversarial, victory-oriented process, litigation further disrupts relationships between former spouses, including their relatives and friends. Additionally, an adversarial process negatively affects children, who suffer the most. That is because their parents’ relationship is ruined during months and years of court battles, making them incapable of engaging in productive co-parenting. Often the children are also involved more directly, through testimony or custody evaluations by mental health professionals and guardians.

Alternative Methods

On the other hand, out-of-court methods provide the simplicity and effectiveness that litigation lacks. The collaborative approach offers multiple advantages with the right collaborative divorce attorney. Likewise, mediation can provide you with many benefits. Anna Krolikowska is both a collaborative divorce attorney and a certified mediator, and can talk to you about the two different approaches so that you can choose the right approach for you.

A Collaborative Approach to Divorce

The collaborative process focuses on cooperation between the divorcing spouses and their collaborative divorce attorneys. Each spouse is represented by a collaborative divorce attorney working together towards an out-of-court settlement. It is not possible for an attorney to represent both spouses in any divorce proceeding, regardless of which divorce process you use, because of the inherent conflicts. The collaborative divorce attorneys, like Anna Krolikowska, are trained as mediator and trained in collaborative divorce process and utilize their skills to help you reach a collaborative divorce agreement that works best for you and your family.

After signing a representation agreement, both parties commit to conducting themselves in good faith, using their best efforts to settle. The collaborative divorce attorney cannot represent the same client in litigation if the collaborative divorce ends unsuccessfully. That is because they have had a much greater access to their client’s spouse in a collaborative divorce process than in any other type of a divorce process. In addition, in a collaborative process the parties agree to disclose all material information and accurately represent the facts.

The key to these collaborative divorce process rules is creating an atmosphere of trust and enabling a free flow of information. Because the collaborative law process is confidential, collaborative divorce attorneys encourage their clients to have full transparency by holding four-way conferences and multiple open negotiating sessions.

Unlike litigation lawyers who engage in adversarial court battles representing opposite sides, collaborative divorce attorneys closely cooperate in bringing about positive outcomes, while representing the best interests of their respective clients. As a result, they often work in a much more collegial and efficient way, but that should not confuse you because collaborative divorce process is all about cooperation, and collaborative divorce attorneys focus their practices at connecting people and overcoming disputes.

Divorce Mediation

Mediation, as an alternative dispute resolution method, involves a neutral third party facilitating the negotiations between the spouses. The mediator, often an attorney, conducts private sessions, allowing the spouses to open up about their feelings and talk sincerely about disputed issues. Often, collaborative divorce attorneys are also certified mediators, which allows them to see things from different perspectives and combine the best of both worlds, which allows them to be hired as either a collaborative attorney or a mediator in a particular case.

Mediation can involve either group mediation sessions, with both parties present, or private mediation sessions. In private mediation sessions (caucuses), the parties talk confidentially with the mediator, disclosing their arguments and negotiation goals. The mediator goes back and forth between the session rooms, trying to estimate the strength of their claims and the likelihood of settling. They are not allowed to disclose what the other party revealed unless authorized. In open sessions, the parties gather to discuss disputed matters, bringing offers and counteroffers. The mediator cannot resolve the dispute, or give legal advice. They generally tried to guide the couples towards reaching their own solutions. Mediators must remain neutral throughout the process, facilitating negotiations between the parties and encouraging them to settle.

The Common Benefits of Collaborative Divorce and Mediation

Confidentiality

Like collaborative divorce, mediation is confidential, meaning spouses, collaborative professionals and the mediator cannot reveal information shared during collaborative or mediation sessions. That applies to future litigation if collaborative divorce or mediation ends without success.

Sense of Control

Both collaborative law and mediation provide the parties with a greater sense of control than any litigated divorce. Unlike the court process where judges impose their binding decisions, parties in collaborative divorce and mediation have control over the process and the outcome.

Resolution

As non-adversarial tools, collaborative divorce and mediation help the couple to process the dispute at a deeper emotional level, bringing genuine resolution and building productive co-parenting relationships.

The Use of Expert Teams

Experts are invaluable in every divorce process, offering help with complex financial issues and providing psychological assistance to the spouses and the children. Financial specialists and appraisers help resolve matters such as real estate valuation or determining the value of an ownership interests in the family business. In addition, child psychologists offer much-needed assistance to children undergoing a stressful divorce, ensuring they come out of the divorce without unnecessary emotional trauma and psychological burdens.

In litigation, experts play a much greater role than in collaborative divorces or mediation. In litigation, each party hires an expert who testifies before a judge in an adversarial procedure. The judges decides which experts and what testimony is more convincing. Often the litigated divorce becomes a battle of the experts with the commensurate, i.e. expensive bill.  Contrarily, in collaborative divorce and mediation, when needed, parties often retain a single, neutral, expert in a particular field. Experts provide findings, information and data points, helping the parties to understand complex issues. They are neutral and unbiased, providing the parties, collaborative divorce attorneys, and mediators with accurate factual information regarding the case. The divorcing couple decide what weight to give the information they received from the experts, and what settlement agreements they want to reach. The divorcing couple decides their future.

A Collaborative Divorce Attorney That Can Help

Anna P. Krolikowska is a collaborative divorce attorney and a certified family mediator in Illinois.

With years of experience in resolving family disputes in an out-of-court setting, Ms. Krolikowska offers a unique approach to dealing with marital disputes.

As a collaborative divorce attorney, she will represent their clients diligently, working shoulder-to-shoulder with the opposing collaborative divorce attorney. As a mediator, she offers neutrality and impartiality in facilitating your negotiations. Contact Anna to see how she can help you in your divorce.

Please reach out today to schedule a consultation at 847-715-9328.

Marriage Crisis and Divorce

A marriage crisis precedes every divorce. It can last from a couple of months to a couple of years. In each case, spouses start to feel alienated from one another. They do not consider their marriage a place they want to spend the rest of their lives.

The alienation process starts when one spouse begins to feel dissatisfaction and loneliness. Usually, a wife experiences these feelings first, while the husband often remains unaware of what is happening. The inability of one spouse to recognize difficult emotions their partner is experiencing – is by itself a sign of a real marriage crisis leading to a divorce. When the other spouse eventually becomes aware of alienation, they usually react with disbelief, shock, anger, and resentment. Statistic suggest that majority of divorces are initiated by women. The spouse (usually the husband) who ignored their partner’s unhappiness begins to experience fear, hurt, humiliation, resentfulness, and often anger. Many feel betrayed and want to hurt their spouse through the divorce process. At that point, the stage is ready for an all-or-nothing legal dispute.

Divorce is a legal process that involves multiple challenges. It is an emotionally and financially draining experience and a time-consuming process. Marriage dissolution requires dealing with marital property distribution, child custody, child support, parenting time allocation, and spousal support.

But does divorce necessarily have to be a such a damaging experience? Does each divorce involve a legal battle that further deteriorates relationships between former spouses? It depends on which method you choose for your divorce.

Litigated Divorce Makes Things Worse

Traditionally, divorcing couples end their marriage in court. Litigation is a court process involving strict rules. In Illinois, a no-fault divorce state, spouses do not have to prove guilt. The only reason for divorce is irreconcilable differences and a breakdown of their marriage. However, divorce requires dealing with issues such as child custody, child support, marital property division, and alimony, which unless the couple agree upon  will demand proving your allegations in Court so a judge can decide. That is why going through different stages of litigated divorce can be emotionally and financially exhausting.

Litigation is a public court process. Everything shared in litigation becomes part of the publicly accessible record. Unfortunately, the vindictive atmosphere of litigation, can often lead to destructive, embarrassing or private information becoming part of the public court record.

The litigated divorce process is adversarial, meaning that spouses and their attorneys engage in a nasty legal battle to win the case regardless of the consequences. Litigation is a zero-sum game.

Since losing is not an option, parties and their attorneys use various strategies to defeat their opponent. In doing so, they often do not adhere to the highest ethical standards. Airing each other’s dirty laundry by disclosing sensitive personal information is one of the methods parties sometimes use to conquer, or embarrass their adversary. Watching their parents humiliate each other in public, or even worse being pulled into their parents’ divorce can leave permanent emotional scars on children.

In litigation, the winner takes it all. But victory comes with a price, both financial and emotional. Winning the case in court usually means further disruption of relationships between former spouses. As parents, they cannot maintain productive communication and efficient co-parenting. In that way, children emerge from litigation as the biggest losers. Litigation is also more expensive than mediation or a collaborative divorce.

Unfortunately, litigation does not only disrupt relationships between spouses. Both spouses have a network of supportive friends and relatives who turn against each other, creating the so-called tribal warfare phenomenon.

Mediation – a Balanced Way Out

Unlike litigation, mediation involves a neutral third party facilitating the negotiations between the spouses. The mediator helps spouses express their feelings and bridge their differences through peaceful talks.

In litigation a judge makes all of the decision and has to adhere to strict formal rules. There is no place for informal exchanges between the parties. The rigidness and adversarial nature of litigation create a highly-stressful environment. Conversely, the mediator holds private and joint sessions in a friendlier and more relaxed environment. The informal atmosphere of mediation reduces anxiety, allowing the spouses to open up about their feelings and talk sincerely about disputed issues. Dealing with child custody, child support, and marital property distribution is more effective through open discussion and negotiations.

Meditation is confidential, meaning spouses and the mediator cannot reveal information shared during mediation sessions. Confidentiality creates an environment of trust, enabling the free flow of information.

As opposed to litigation, the mediation process allows spouses to let off steam through the free expression of their genuine emotions. After emotional discharge, spouses are more likely to see things rationally and engage in respectful conversation. The mediator facilitates their talks encouraging them to settle issues related to their marriage in a way that is best for and tailored to their family.

The central feature of mediation is a sense of control and acknowledgment. Unlike the court process where judges impose their binding decisions, parties in mediation have greater control over the process. They can change, or modify the mediation, or even abandon negotiations. The mediator does not have decision-making authority. The couple decides how to proceed. Besides, since a divorce is a highly emotionally charged situation, the spouses feel better, and can arrive at more durable agreements knowing their emotions are acknowledged.

With its non-adversarial, neutral, and balanced approach, mediation can bring back disrupted balance and lead to improved communication and co-parenting dynamic between the parties. Improved communication between the spouses does not necessarily prevent divorce. However, it helps build positive post-divorce relationships. Keeping open and respectful communication is crucial for maintaining a productive co-parenting relationship, from which children benefit the most.

Bring Back Balance with the Right Mediator

Anna Krolikowska is a trained family mediator, collaborative lawyer, and the immediate past president of the Illinois State Bar Association President, and the Illinois State Delegate to the American Bar Association.

With years of experience mediating family disputes, she can bring back the balance between divorcing spouses by facilitating their negotiations toward a mutually beneficial settlement.

Please reach out today to schedule your appointment.

Ending the Marriage Without Children

Marriage is considered one of the pillars in everyone’s life. Although its nature and structure evolve from traditional to more modern concepts, its purpose remains the same. Marriage represents the safe harbor in which we feel safe and loved. At least, that is what everyone expects when entering the matrimony.

Spouses who have children view marriage from a different perspective. Whether you expand your family with children or not, building a family nest and nurturing strong intimate relations between its members is an invaluable life experience.

However, some marriages come to an end. Due to unbridgeable differences between the spouses, their life together becomes unbearable or meaningless.

Divorce always brings strong emotions, such as resentment, anger, sadness, and anxiety. The emotional aspect of divorce is more pronounced when children are involved. Dealing with custody and parenting time is a stressful experience for parents and children. The biggest concern during divorce is protecting the children and their emotional wellbeing.

On the other hand, in marriages without children, spouses can focus on dealing with legal matters that revolve around financial issues.

Financial Issues Involved

Divorcing without children enables spouses to separate permanently and never cross their paths again if they choose to do so. They are not bound together as parents for the rest of their lives.

Although free from sharing parenting time and other child-related concerns, the divorcing spouses deal with three vital financial issues: identifying separate property, division of marital assets, and spousal support.

Before approaching the division of marital property, the spouses must first identify their separate property. That is the property each spouse had before marriage, such as the real estate, earnings acquired before entering the matrimony, etc. In Illinois, inheritance or gifts to one spouse are separate property, although the inherited property can turn into the marital property (depositing inherited money into a joint bank account). Sometimes a property one spouse acquired before the marriage (family home) is upgraded by the investment of the other spouse. In that case, the other spouse may seek compensation for the upgrades.

All other assets acquired during the marriage are considered marital property. In Illinois, judges divide marital property based on their sense of fairness. While dividing property, they consider various factors, such as the age and health of the spouses, their current income, including the projected economic standards of each spouse.

Spousal support or alimony is another financial issue that spouses without children address during the divorce. The so-called maintenance payments provide the lower-income spouse with the necessary means to support him or herself. In assessing the spousal support payments, the courts consider earning capacity of each spouse and their financial needs, including tax implications.

How Can Collaborative Law Help?

As an out-of-court dispute resolution method, collaborative law offers far more benefits in dealing with financial aspects of divorce than traditional litigation.

The central feature of the collaborative law process is the cooperation between the parties and their attorneys. With participation agreement, spouses commit to using their best efforts and conducting themselves in good faith. Unlike litigation, where the opposing attorneys engage in an all-or-nothing court battle, collaborative law attorneys cooperate in creating an atmosphere of trust. The spouses participate in multiple meetings, agreeing to disclose all material facts, including financial-related information. The openness and transparency of the collaborative law process make it best suitable for resolving complex financial matters involved in a divorce without children.

Identifying separate property and the division of marital property are interconnected aspects of dealing with property issues during divorce. In litigation, the judge divides property by considering multiple factors, such as the length of the marriage, contribution to marital property, the educational and career opportunities of the other spouse, etc. In Illinois, as a no-fault divorce state, the fact of one spouse engaging in adultery or other misconduct is irrelevant in marital property division. That may seem unfair, and it usually is.

On the other hand, collaborative law seeks to establish a common ground between the spouses. By working together in close cooperation, collaborative attorneys encourage spouses to settle property division issues. Instead of waiting for a binding decision of a state-appointed judge, the spouses control the process and negotiate a fair and mutually beneficial solution. Such an approach is always just for both sides.

Likewise, collaborative law proves to be a more compassionate approach to alimony, too. As mentioned, the courts analyze various factors when deciding on maintenance payments. However, judges usually do not consider the emotional effects of ordering spousal support. If one spouse is entitled to support, that does not mean that awarding them payments is always a fair decision. The judges ignore the underlying psychological factors of divorce. That is why they cannot find the right measure in ordering alimony.

Contrarily, collaborative attorneys understand the emotions behind each divorce, aware that feelings of guilt and resentment are often involved in separation. Insisting on maintenance payments for a spouse who contributed to a divorce is not fair, even if they are entitled to receive such payments (as a lower-income spouse). In many cases, the entitled spouse is not willing to receive alimony because of feelings of guilt for betraying their partner. The courts are blind in recognizing that.

Acknowledging emotional, psychological, and all other aspects of the divorce collaborative law process can offer fair and mutually beneficial outcomes to divorcing spouses.

Who Is Anna Krolikowska?

Anna Krolikowska is an experienced family lawyer and a President of the Illinois State Bar Association.

Certified mediator and collaborative law professional Anna offers a unique approach to marital dispute resolution.

Using sophisticated collaborative skills nurtured over a years-long career, she can help you successfully resolve key financial issues involved in a divorce without children.

Many people will agree that the holidays have a certain energy and momentum to them that carry people from one emotionally charged holiday to the next. It seems like Halloween begins a feeling of festivity, especially for children. Thanksgiving has the power to bring people together emotionally or not.

Hanukkah and Christmas are laden with emotion, expectation, and vibes that reach back to our earliest years. Then comes New Year’s Eve which can be magnificent or crushingly painful for people who feel their personal life is out of alignment with their hopes and dreams for themselves.

Many spouses begin filing for divorce after the holidays. It may come as no surprise to you that divorce filings increase after January 1. For many people, the cycle of holidays is just too much, and they emerge from them wishing for a divorce. When prospective clients call my office after New Year’s Day we talk about several elements as preliminary to the work of a divorce filing.

CLICK HERE to go to the Divorcemag website for the rest of this article.