Author BirtLaw

What does pre- and post-decree mean?

In the world of divorce professionals, language such as pre-decree and post-decree is used.  This can confuse clients and potential clients.

Pre-decree includes anything that occurs prior to the finalization of the divorce.  It can include mediation, evaluations, drafting of the Petition for Dissolution of Marriage, Drafting the Judgment for Dissolution of Marriage, drafting the Marital Settlement Agreement.  It can also include pretrial motions (orders of protection, restraining orders, petitions for temporary custody, etc) and pretrial conferences with a judge.

Post-decree matters start after the judge signs the Judgment for Dissolution of Marriage and can include enforcement of the Marital Settlement Agreement or Judgment, modification of the Judgment, wage garnishment orders, Qualified Medical Child Support Orders, Qualified Domestic Relations Order (divide certain retirement accounts), Qualified Illinois Domestic Relations Order (divide certain retirement accounts – such as for a teacher).

If you are retaining an attorney for an uncontested divorce or a collaborative divorce, discuss what pre-decree and post-decree mean with your lawyer. The attorney and the client need to be on the same page so there are no fee related surprises.

Addiction and the Family Unit

What should you do if you realize that your spouse or ex-spouse is abusing or addicted to alcohol or drugs? Options for a family in transition are collaborative practices or traditional litigation when substance addiction or abuse is an issue for a family. Both options are discussed below.

As long as all parties and children are safe, it is possible to use collaborative law services if the spouse or ex is in therapy/rehab and sober for a period of time.  The person needs time to learn healthy coping skills and to feel emotions again.  Such skills are needed to engage in meaningful negotiations.  This person should also have a strong support group: an attorney, a coach, a therapist, and family/friends.  

There are several benefits of using collaborative practices, however one benefit that has been important to clients is that the drug use (past or present)will not become public (but if there is a pending criminal case it is already public) and thus is less likely to jeopardize the persons employment. It is also less likely to cause the person to be defensive which may interfere with their recovery.  The collaborative approach will help the parties to create a visitation schedule that allows the party with the addiction to heal and continue a relationship with the family and child/children. Team members and professionals can help the parties to determine boundaries and goals that will help facilitate a safe and meaningful relationship with children.  

Often in family litigation, if this situation arises, visitation is suspended. No time is used to develop a plan to help repair the family. This can hurt the parent and the child/children.  But in a collaborative setting,  a professional counselor and child coach can help the family deal with the substance issue and help create an agreement, whether its temporary or permanent, that can help the family through this difficult time.

Sometimes, the disease of addiction is such that a parent is not fit to be around family or children.  If this is the case, an intervention can be planned or hospitalization or inpatient treatment should be evaluated.  When a person is not fit to care for themselves, the family, or children, the collaborative process should not be initiated, but if so it should be suspended or altogether stopped. 

If the collaborative approach is not acceptable to both parties or is not safe because the drug use is current and the person is not able to make decisions, the traditional adversarial system (litigation) should be considered and used.  Typically in litigation, an emergency motion to modify visitation and/or custody is filed with the court.  A hearing date will be selected by the party or attorney filing the emergency motion.  On the initial hearing date, the court needs to decide if the issue is an emergency.  If the court deems the issue an emergency, the court will proceed that day on the hearing on the petition to modify and enter a temporary order and then set the matter for a hearing date when all parties can be present. The temporary order may modify the visitation schedule, suspend visitation, or require supervised visitation.  If the court does not deem the issue an emergency, it will not enter a temporary order, but rather it will enter an order that sets a future date to hear the petition to modify.  If a criminal case is pending, the court may decide to set the hearing on the petition to modify at a later date when the criminal case is either resolved or at least under way.  Criminal cases can take a long time to resolve, a temporary order may be entered subject to the outcome of the criminal case.

When addiction or substance abuse affects the family unit, it is best to consult with a professional so that you can determine what needs to be done to protect your family and children

Collaborative Divorce Cases

Some examples of the benefits of Collaborative Divorce shared by members of the International Academy of Collaborative Professionals: 

An Atlanta couple of 16 years entered into a ‘new’ relationship with the help of Collaborative Practice. Having a team of lawyers, a child psychologist and a financial planner allowed the family to talk through a fair financial arrangement and to meet the needs of the children. Collaborative Practice helped the couple keep their perspective of what is important. The entire process only took six months and both parents still meet once a week to give each other updates on what has happened the previous week in the children’s lives. 

Two parents had a special needs child that was the subject of their financial conflict. Cpllaborative Practice not only enabled them to refocus their discussion and come to an agreement, but to continue to work together after the divorce to make sure that both their children receive the care and support that they need. 

A divorced couple who had once been childhood sweethearts could not keep communication civil and tensions increased as custodial issues regarding their five-year-old son arose. The breaking point for the couple led them to Collaborative Practice where they learned how to communicate with each other to enable the healthy development of their son. The collaborative process also solved the custodial issues by giving each parent 50/50 custody and arranging a financial plan where both parents contribute to costs relating to their son and both are able to monitor the spending of the money. 

 

 

 

Some Things to Consider When Thinking About Custody Issues

Are you considering joint vs. sole custody?  Are you able to accept that you are no longer husband and wife, but you are a father and a mother?  Being able to put your differences aside and communicate about the issues concerning your children is necessary to joint parent.  The big issues that require communication and input from both parents are education, religion, and medical/health.  The day to day decisions (what to eat for dinner, can the kids play with their friends, when will homework be done) are handled by a parent when that parent is with the child/children. But if you and your soon to be ex-spouse have shared beliefs re: education, religion and health care, you will likely be successful in creating a joint parenting agreement. 

For example, to joint parent, you should have no problems calling your soon to be ex spouse to discuss school or a doctor’s appointment or even invite your spouse to school events and doctors appointments.

If you are not able to discuss your children without fighting, you may want to consider working with a counselor prior to negotiating a parenting agreement.  In some cases, parents are not ready to put their differences aside at the begining of the divorce process but they can after receiving professional help.  It can be a huge benefit to your family if you take the time to heal. 

If after considering or attempting professional help, you still cannot get along it may be time to discuss a sole custody parenting agreement.  Sole custody means that one parent, typically the residential parent (the parent that resides a majority of the time with the children) makes all of the decisions re: education, religion, and healthcare.  The parent may have to at least notify the other parent of any changes, but that parent does not have to discuss options with the parent prior to making decisions. 

Parties tend to place a huge amount of importance on joint custody.  Sometimes, just to get the divorce done people slap together a joint parenting agreement but this does not benefit the children. This is a big mistake.  The parents continue to fight, the children are left stuck in the middle, and each party runs back to court over the smallest violation of the joint parenting agreement.  Sometimes, a sole custody agreement is needed to help keep the peace and to allow the children some stability. 

Collaborative law helps parties with deciding between a joint and sole custody agreement.  Parties work with team members and child specialists so that they have the ability to work on their relationships and create a personalized custody agreement that works for the family.  The parties are allowed time to explore all issues and concerns so that the resulting agreement is one that is likely to be followed by the parties. 

If all else fails, the parties cannot work together collaboratively, and/or the children are at risk of emotional or physical abuse, litigation is needed.  Under such circumstances, each party should consult with an attorney and discuss whether mediation is needed and how to proceed with court appointed evaluation so that a neutral judge can determine what is in the best interest of the children.

Terminating Mediation

There are times when mediation of a family issue between two parties is not possible.  The mediator must have the appropriate skills to screen the parties and determine that one or both of the parties cannot proceed with mediation.  Termination of mediation can occur if there are issues re: domestic violence or mental health and substance abuse impairments.

Even though parties of mediation control the negotiations and ability to reach an agreement, the mediator maintains responsibility over the mediation process.  Mediation must be terminated if the mediator determines that it would be unethical to proceed or that to proceed would endanger a party.

If there is a history of domestic violence, and the mediator determines that the parties cannot mediate with certain precautions (ex: arrive and depart at separate times, have an advocate in the reception room, have security present) or delay mediation to address imbalances (ex: go to counseling, obtain substance abuse treatment, obtain an attorney) the mediator needs to be prepared to safely terminate mediation.  One should be careful to terminate mediation and minimize consequences. The goal is to avoid victimizing the victim and avoid shaming the batterer so that the batterer does not  react by harming the victim or children.  Terminating can be explained by:

1. The Mediator clearly states that it is his or her decision to stop the process at this time (it must be perceived that it is the mediator’s professional decision to terminate so that blame is not placed on the victim of abuse);

2. Caucus (meet in separate rooms) with each party and explain to that party that it is the mediator’s sole decision after listening to that parties concerns that mediation may not be appropriate at this time as  the authorities may need to continue to investigate the details of the case (so the batter feels heard and the victim feels heard);

3. The mediator clearly states that he/she lacks the required license to address certain issues (and therefore the mediator takes the blame for termination);

4. Explain that the mediator’s code of ethics prohibits mediation of cases beyond the experience of the mediator and offer referrals.

The above examples can be adapted to use for terminating mediation if there are issues with mental health and substance abuse impairments too.  In addition, with such impairments, it’s important to caucus with each party and carefully question the current status of the parties in a manner that permits the parties to decide that it is not appropriate at this time to mediate.  For example: “You shared that you are not currently taking your prescription medication and you are aware that there are consequences to stopping your mediation.  Do you believe mediation is in your best interest at this time? Possibly an attorney and your doctor can help you determine what is in your best interest at this time?”

Mediation is a powerful process that allows parties to discuss and agree upon the next step in their lives.  One must understand that terminating mediation does not necessarily mean that the parties and the mediator failed.  The termination provides that next step for the parties , one that can be adequately addressed by an appropriate professional (mental health, custody evaluator, doctor, etc.).   Hopefully, by providing referrals and distancing victims from further harm, one of the parties will hopefully take the necessary steps to obtain needed help.

Where to Find Help

I receive emails everyday from friends, family, and the community asking how to find support for their legal  endeavors.  Support is important during difficult transitions for you and/or your family.  There are two areas of support for a person involved in a family legal matter.  Support from family and friends and professional support.  The first place one finds support is through family and friends.  It is important to have an emotional outlet that may not present in a professional setting.  Divorce, separation, and family transitions are among the top most stressful situations during a person’s lifetime.  Having family and friends around to provide empathy, encouragement, and trust can help ease your transition into a new lifestyle.  Family and friends, though, should not be your only  support group as solid objective advice is what is most beneficial during emotional times.  When a person makes decisions solely on emotions, that decision has not been thoroughly  analyzed and likely is not the decision the person would make once the emotion is removed (such as when time passes). Emotional decisions must consider an objective perspective.

The second place one should seek support is through a professional.   Professional objective advice and support, however,  can be costly and you must seriously consider your options and conduct your research.  Finding a trusted professional will be the best investment you can make.  The professional will help you navigate through your issues and help you make appropriate decisions that are best for you and your family.  Sometimes that professional will say things that you do not want to hear, but it is the objective truth and you must try to listen.  To look for a supportive legal  professional in your area please visit www.collaborativepractice.com.

Cost of Mediation

Clients and court ordered parties of mediation often wonder about the cost of mediation.  If the court sent me here, why do I have to pay for it?  If my spouse and I are the ones agreeing to settle, why do I have to pay for it?

The hourly fee for mediation includes the value of the skills and expertise of the mediator, the training of the professional that allows that person to be qualified to handle mediation cases, and the benefits of not being subject to a long court battle, etc.  It takes years of experience to be a mediator that can settle a case in a few hours.  Those years of experience have value.  I vaguely remember a story, forgive me as I can’t remember the details right now, but it goes something like this:  a person approached a painter on the street and asked him to paint their portrait.  The painter finished the portrait  in 5 minutes and asked for payment that far exceeded the expectation of the subject of the painting.  The subject objected and asked why the painting was so expensive when it only took 5 minutes to complete, and the painter responded, “ah, to you it took 5 minutes to paint, but in reality it took a lifetime to paint that portrait .”  The point is there is value in an expert’s training, ability, and experience.

The Court, lawyers, other mediators, and parties have contributed to the  devalue of  mediation services. “Giving Back or Just Giving It Away: Can Mediators Empower Others If We  De-Value Our Own Expertise? By Sid Cohen is a great article that examines the problems with perceived value on mediation.  See http://www.mediate.com/articles/cohenSig1.cfm?nl=278

Family Mediation

Mediation is a wonderful alternative to courtroom litigation. The parties of a dispute control the decision-making process with the assistance of a neutral party (the mediator). The mediator is not a judge and will not decide the outcome, rather the mediator  facilitates communication and ensures all parties respect boundaries and ground rules. Mediation allows the parties to openly discuss their concerns and possible solutions without being limited by what is “relevant” to a court of law.  Mediation is often used for contract disputes or custody and visitation issues, etc.   People don’t realize it, but  it can be used for married couples too.  It can help couples communicate and work through their issues instead of filing for divorce.  Often mediation costs much less than traditional litigation.  If you are looking for a mediator in your area, visit www.mediationcouncilof illinois.org,  www.mediate.com, or www.birt-law.com.

Fear of the cost for legal services

During a consultation, a client wants to learn an attorneys hourly rate, the retainer amount, and how much the whole thing is going to cost.  Sure, they listen to the explanation of the divorce or custody process, they ask questions about “what they can get”, but what they really walk away remembering is the amount of money they are going to spend – or the amount they think they are going to spend.

It is nearly impossible for an attorney to tell you how much it is going to cost to get divorced or separated. Each case is different and each client has different requests or demands that need to be addressed.  Court based litigation is always going to cost the most.  In general, family law attorneys have two billable hour rates: an in-office rate and and a higher out of office rate.  If you want your attorney fighting in court, you will pay for the higher out of office rate during the times your attorney is in court.  You will also pay for any court appearance, regardless if something is resolved in court or not, because once you subject yourself to litigation, you subject yourself to the Court’s schedule.  If the Court can’t hear your case on a particular day, the case will get set over to a different day.  And the out of office billable hours  just keep adding up….

Now, there are times when litigation in a family law case is necessary:  Abuse, mental or physical;  Orders of protection; Addiction; Failure and/or refusal to disclose pertinent information; Any time you are not comfortable with an alternative to litigation.  Absent those issues, there are some great alternatives to family law litigation that generally cost less than litigation and generally result in agreements that both parties are inclined to follow. One option that I will discuss today is the option of hiring a consulting attorney or an attorney solely for the purpose of preparing the necessary documents to finalize a divorce in court.

For example, you have been married three (3) years, no kids, no assets, no debts.  It may be  possible to navigate through the divorce process on your own (“pro se party”).  This means you and your spouse or significant other will have to talk to one another, work out your issues, and agree to  all terms of a settlement agreement.  You will have to take time off of work to file a petition for dissolution of marriage, obtain a court date, and appear before a judge for a hearing to finalize the divorce.  If you do all this, it still would be worth the time and effort to hire an attorney on an hourly basis as a consulting attorney  or as an attorney to review the documents you have prepared.  I can’t tell you how many times pro se parties take a day off of work to finalize their divorce, appear before a judge, and are turned away because they don’t have the right paper work or the paper work is not in an acceptable form for the Court.  Don’t waste your time, hire an attorney to at least review your documents or pay an attorney a fee to draft the necessary paper work and appear on that last, but most important, day in court.

Appearing  in court with an attorney will likely get your case called faster (which means you may just  get out of the court house before 10 am!), guarantee that the papers will be accepted by the judge, and please the Court (since they will now be able to move on to the other 100 cases they have to hear that day).  The prove-up hearing (the hearing that finalizes the divorce) should take 5-10 minutes with an attorney in front of the judge.  If you do it on your own, you could be there all morning and you may still have to take another day off of work to return to court on some future date.  Remember, you can always discuss the hourly rate with an attorney, so don’t let the cost of legal services deter you from doing it right the first time.

Tomorrow, additional alternatives to courtroom litigation will be discussed….

Engagement Agreements – a valuable tool for clients

Ending a relationship is difficult. There will be sadness, grief, and some long nights to endure. Friends and family can and will provide support during this difficult time. As much as you will need your family and/or friends, you will also need someone to help you cut through the fog and think realistically and logically. You may need to listen to the things you just don’t want to hear.  For example, if you have children, joint assets, joint debts, and/or rights to the benefits of your spouse or significant other, it is worth the time, cost, and energy to find an attorney that will work with you, educate you, and likely give you a much needed strong dose of reality.

Interview attorneys.  That is what a consultation is for.  Some attorneys advertise that they are “aggressive” but that usually means that they will charge you a huge amount for every second spent developing an issue that you didn’t even realize needed to be resolved.  Some attorneys will take any case that walks through the door regardless if they are familiar with an area of  law or not and leave files and clients sitting for weeks or months without any resolution to the case.  Then there are attorneys that actually  listen to your concerns and proceed with services after consulting you and after obtaining your authority.  Again, interview attorneys. You need to know how that attorney approaches cases and you will need to know that you  feel comfortable with your attorney.

In Illinois, parties and attorneys must sign an engagement agreement for family law services.  Some clients do not what to do this, I am not sure why.  This agreement spells out how your attorney will be handling your case, the cost of services and a retainer agreement, and how and under what circumstances your relationship with your attorney will end.  All important things for the client.   Read the agreement.  Most clients/attorney disputes or misunderstandings could have been avoided if the client read and reviewed the engagement agreement.

There are no rules that the engagement agreement cannot be modified.  Discuss the agreement with the attorney. If you want to hire the attorney but your financial circumstances are problematic, discuss a possible reduction in the hourly rate of the attorney or a modification of the retainer amount.  Do not be afraid of the engagement agreement.  Use it as a tool to get to know the attorney, his/her work ethic, and whether or not you and the attorney are compatible.