I am getting a divorce! What’s next?
For adults, divorce remains one of life’s most stressful events. Death of a loved one, dismissal from work, an illness, or marital problems certainly challenge the strongest of characters. Unfortunately, divorce is a very real part of our life. According to United States Bureau of Labor Statistics, 45.7 percent of all marriages end in divorce for people between the ages of 15 and 46 with an educational attainment of an associate’s degree. This was a study that spanned the period of 1978-2010. Latest reports suggest that this figure is on a rise, perhaps in part, due to an evolution of our social norms, shifting marital roles, and increasingly gender equal job market.
As a licensed Family Law attorney in the State of Illinois and a court-certified divorce mediator, my best advice to clients is to never compound a bad marriage with a bad divorce.
It is important to note that the State of Illinois is a no-fault state, which means that marital misconduct on the part of misbehaving spouse has no effect on the disposition of the wealth of the marital estate. In other words, your cheating spouse may still be awarded a favorable share of the marital home or the accumulated bank account's balance. The days of bringing your priest and your neighbors to court to testify as to who caused the breakdown of the marriage, while persuading a jury of your peers are long gone. There is no need to testify regarding the origin of certain foreign undergarments located by an aggrieved wife. These days, the court views divorce as a dissolution of a business partnership. Assets must be divided, debts allocated, and if there are children, custody and child support need to be addressed.
From my perspective as a divorce attorney, spouses typically do not contest the actual dissolution of marriage as the divorce is inevitable. Divorcing spouses simply disagree as to the finances and custody matters. This brings us to three categories of divorce: “hotly” contested, “mildly” contested, and uncontested (full agreement).
First, spouse should begin to start thinking regarding which basket their divorce falls into before ever stepping into my law office.
In the event a client suspects that there will be no agreement because of one spouse having a history of secreting income or assets, or if there are serious child endangerment or abuse issues, or there simply is a profound difference of factual opinion relating to the finances or custody, the best route is to file divorce papers in court, and proceed through the litigation stage. At this stage, any issues of disagreement will be decided by a judge. Attempting to negotiate or mediate (more on that later) would be futile. This process, differs from each state, but here in Illinois, a common contested divorce consumes approximately 12-18 months. Of course, every case is different. Plenty of moving variables determine the length of the case, i.e. quality of lawyers, unreasonableness of your spouse, type of judge, scheduling, and complexity of issues.
In the event a case is “mildly” contested, two major options are available. First, a spouse retains a lawyer and proceeds with a less litigious zest. Negotiation is done “behind the scenes” without ever having the need to conduct a hearing before a judge. For an example, if the marital estate and finances can be quickly identified by attorneys, or the dispute involves a nominal amount in comparison to the potential attorney’s fees being expended in litigation (cost/benefit analysis), it is prudent to resolve all remaining issues in a more private setting than a courtroom. Negotiation is usually channeled through attorneys. Naturally, if the marital estate is rather sizeable or income of the party’s is substantial, a divorcing spouse should retain an attorney.
Another option is to proceed through mediation. Unlike an attorney negotiating through the comforts of his office chair, mediation is a process where two spouses meet face-to-face in an effort to resolve points of disagreement via discussion through the assistance of a third-party neutral mediator, who neither acts as a judge nor as an attorney representing either party’s interest. Mediator is essentially a facilitator and never advocates for either side. Mediation is a wonderful instrument because of its numerous benefits and advantages. It is far less expensive than litigation, and typically consumes less time. Mediation also offers the parties an opportunity to control their fate. Judges, above else, like everyone, make mistakes. Mediation also offers the spouse to openly air their grievances, oftentimes serving as closure and peace of mind.
A good example of this “behind the scenes” hybrid of mediation and negotiation is Michael Jordan’s divorce from Juanita Jordan, his then-wife of 17 years, in 2006. As a caveat, I did not participate in this case. The Jordans’ divorce was finalized with little media frenzy because the case never saw the light of the day in the courtroom. Ms. Jordan was able to walk away from the marriage with huge savings on attorney’s fees, her dignity intact, and a cool $168 million settlement, as widely reported. More recently, similar scenario is unfolding with Bruce and Kris Jenner of the reality television show, “Keeping up with the Kardashians.” Many readers surely will be shocked. Yes, the Jenners are divorcing! If those two kids can’t make it, who can? As entertaining it might be, do not expect a legal battle, because a full and complete agreement purportedly has been finalized between the parties, most certainly through the assistance of counsel and financial advisors.
Last by not least, a scenario with a full agreement reached at the kitchen table is obviously the most preferred and ideal method. It is most common when the parties have a modest marital estate, marriage is rather short, and there are no children. In the event of a full agreement, a lawyer may simply act as a scrivener memorializing the terms of the agreement.
Every option is entirely dependent on the needs of the client. Persons contemplating a divorce should consult with their trusted counsel to see which option is the right one for them.
Gregory Gancarczyk is an Illinois licensed attorney concentrating in all aspects of Family Law.
Mr. Gancarczyk, is a principal in his firm, Gan Law Group (www.ganlawgrup.com). In 2013 and 2014, he was named by Super Lawyers Magazine as a Rising Star in the area of Family Law, a designation reserved for the top 2.5% of all Illinois attorneys under 40.
Mr. Gancarczyk can be reached at firstname.lastname@example.org.