Category Mediation

Why Fighting Can Actually Be Productive In Divorce Mediation

For many people, divorce mediation can be helpful at opening up channels of communication between parties to air their individual thoughts, desires, and expectations.

It can also provide the opportunity for either party to air specific feelings of sadness about the divorce, fears about the future, and anger at their partner for past hurts large or small.

That last one often can include some pretty explicit and creative name-calling, which isn’t necessarily a bad thing, says Dan Simon in a recent blog on Mediate.com. Below are some of Dan’s reasons why mediators and couples should be open to this strategy in mediation.

  • IT’S QUITE POSSIBLY THE TRUTH. “Mediation can be an opportunity for parties to speak their truth, to name reality as they see it. After having been perhaps horribly mistreated by the other party, the opportunity to tell them what they really think of them is an essential part of a process that’s intended to meaningfully address the conflict,” says Simon

  • IT CAN BENEFIT THE NAME-CALLER. According to Simon, once the naming party gets it off his or her chest, so to speak, in the presence of the mediator, it’s quite possible they can then calmly discuss other key aspects of the divorce process such as property division or child support.

  • IT CAN BENEFIT THE PERSON BEING NAMED. “The namee may become more aware of just how angry the namer is; they may gain insight that the namer is out of control, which might inspire the namee’s compassion; the namee might reflect more deeply on their own behavior that inspired the namer.” It also allows the namee to decide whether to sit there and take it or respond in kind with the mediator there for support.

In Simon’s view, “Mediation is supposed to be about self-determination.” This includes both parties being able to engage each other, say what they need (or want) to say, and even walk away when it suits them.

Parties using divorce mediation generally want the best results for everyone involved. That’s why they chose to mediate. If it takes some name-calling to reach that end, couples should be open to experiencing it and mediators should be ready to let it happen in that safe space they provide for their clients.

As an experience divorce mediator, I can help you successfully work your way through all aspects of this process. Contact me for more information.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

 

Safe And Stress-Free Child Custody Exchanges

Post-divorce child custody exchanges can be happy, peaceful, awkward, or downright horrible, depending on the relationship or issues between you and your ex-spouse. Family mediation might be needed in very difficult situations, but here are some general tips to make the swap easier on everyone.

CHOOSE A NEUTRAL SITE

To reduce stress on all involved—especially the children—child custody exchanges are often done on neutral ground rather than at the home of either parent.

Some potential public places for a custody exchange after divorce include:

  • Your child’s school or daycare
  • A large department store such as Target, Walmart, or Sears
  • The local grocery store
  • McDonalds, Burger King or other restaurants in your area
  • The parking lot of your city’s police station or fire house

Any public area will generally have other people and/or security cameras close by, ensuring that everyone remains on their best behavior during the exchange.

Families in DuPage County, Illinois, might consider the DuPage County Family Center as an exchange site. If your divorce included mandated parent education, the Family Center provides programs to improve the relationships between parents and children.

SET SOME GROUND RULES

To make an already difficult situation a little easier, both parents can agree to certain tenets for the exchange.

One of the most important rules is consistently being on time. The site CustodyZen.com explains why this little thing can become such a big deal.

“Situations such as traffic congestion will happen from time-to-time, making a parent late for an exchange.  But when one parent is consistently late it can be disrespectful to the other parent. Furthermore, it can be very stressful for the children and escalate conflict. Repeated tardiness to custody exchanges may result in legal consequences such as being found guilty of custodial interference, a crime in many states.”

Another ground rule can be that one parent remains in the car or at a distance during the exchange if meeting face-to-face will create a quarrel. Again from Custody Zen, “Depending on the amount of conflict, driving to custody exchanges can often…escalate a parent’s frustration. If one parent remains in the car the other can assist with transferring the kids to the other vehicle.”

USE A THIRD PARTY

If all else fails, have a trusted third party make the exchange.

You can enlist a reliable family member or friend, and there are now professional “supervised visitation and exchange services” in many states. Two options are the Supervised Visitation Network and Family Wise. There is a cost involved for these services, and it’s critical to ensure that the person you hire is trained and certified for the role.

It may take a little effort to create a workable child exchange, but it’s important to allow children time to be with both of the parents they love—even when the parents no longer love each other.

Contact me to learn more about handling custody situations or other issues affecting your divorce.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

When To Consider An Uncontested Divorce

If you and your spouse mutually agree that it’s time to divorce—and you feel you can easily reach a consensus about important issues—an uncontested divorce may be the right choice for you. It’s fast, it avoids the courtroom, and it’s much cheaper than a “traditional” divorce.

THE CRITICAL ISSUES

According to DivorceNet.com, the critical issues of agreement for an uncontested divorce include:

  • Shared parenting time and responsibilities
  • Child support payments and duration
  • Spousal support (alimony) payments and duration
  • Property division
  • Allocation of marital debt

If you don’t see eye to eye in all these areas, you can still attempt an uncontested divorce but you may need the help of a divorce mediator (less expensive) or an attorney (more expensive) to work out specific issues.

REPRESENTATION FOR JUST ONE

Writing on his site DivorceInfo.com, divorce lawyer Lee Borden explains legal representation in this type of divorce:

“The first thing you need to know about uncontested divorce is that the lawyer you get to do your uncontested divorce cannot represent both of you. As a society, we assume that the spouses in a divorce have necessarily different interests. The ethical principles for lawyers therefore require that a lawyer cannot represent both parties. The lawyer must represent one of you and not the other. The lawyer will need to know at the outset which of you is his or her client and which of you is not.”

It can take a bit of discussion and negotiation to determine who will be represented, but the non-represented party can safeguard their position with the help of a coach and/or through good research on the pros and cons of uncontested divorce.

WHEN IT’S NOT THE RIGHT CHOICE

There are some specific situations in which uncontested divorce is not the right option for either party. DivorceNet.com and DivorceInfo.com offer the following examples of when uncontested divorce should be off the table:

  • You have a complex life situation and/or major existing disagreement with your spouse.

  • Emotional or power differences exist between the parties. (This becomes very evident when only one spouse has legal representation.)

  • One spouse fears or has experienced domestic violence by the other spouse. (This party needs full legal representation.)

  • You and your spouse hold joint property titles or joint debt.

  • Your children have very unusual and specific parenting requirements.

Even when uncontested divorce isn’t the right alternative, consider using family mediation or collaboration to settle as many issues as possible out of court. This makes the process less emotionally and financially draining for everyone involved.

If you’re considering uncontested divorce, contact me to determine whether this or another option is the right one for your situation.


ABOUT ERIN BIRT

Illinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Is Your Divorce Starting Before You Even Get Married?

Wave washes over heartSome divorces are a huge surprise to both the couple and their families. Other can be seen coming from a long way off, well before the wedding.

A recent Huffington Post article offered thoughts from counselors and divorce mediators on how to know whether you’re really ready for marriage.

Here are a few worth noting—and sharing.

  • KEEPING SECRETS – If you’re keeping secrets from your future spouse—about finances, substance abuse, certain friendships, or anything he or she should know—reconsider your marriage. The same is true if you know or suspect your partner is hiding things from you.

  • HAVING DIFFERENT MORALS/BELIEFS – While this can be overcome, it takes a great deal of work and compromise. If that sounds daunting, consider working with a counselor before you get married because these issues often cause marriages to fail.

  • THINKING YOU–OR MARRIAGE–CAN CHANGE YOUR PARTNER – The person you’re marrying will probably be the same pre- and post-marriage. If you don’t love the person for who he or she is right now—warts and all—you’re not ready for marriage.

  • FEELING SCARED ABOUT MONOGAMY – This is a conversation that should happen well before the wedding plans are made, particularly if you’re thinking about an open marriage. Visit a counselor separately or together to discuss commitment issues and put off the wedding until this is resolved.

  • SEEING DIVORCE AS AN EASY WAY OUT – Are you getting married thinking that you’ll just get divorced if things don’t work out? That’s a huge red flag that you’re not ready for the commitment of marriage. You can’t just walk away. Divorce involves issues of property division, child and spousal support, and financial planning, to name a few.

As a DuPage County Divorce Attorney, I know that divorce can be painful, expensive, and create emotional scars for everyone involved, especially children. However, if you find yourself on that road, I can help make it easier through mediation and collaboration. Contact me for more information.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Choosing Between Mediation And Collaborative Divorce

Confusing signIn many of my blogs, I discuss how mediation and collaboration are effective divorce planning alternatives compared to court-room litigation.

While both are inexpensive compared to litigation, these are actually two very distinct processes, and it’s important to learn about each one in order to choose the best solution for your situation.

The information below is excerpted from a Divorcenet.com article by attorney Emily Doskow.

PLUSES OF MEDIATION

  • With divorce mediation, the only people necessary for the process are the mediator, you, and your spouse. You can pull in other professionals if desired, but it’s not required.

  • Mediators do not decide your case; they help you and your spouse to find solutions acceptable to all parties.

  • You have unlimited input on your case because you work directly with the mediator to determine the process and details of your divorce.

  • Since only three people are involved for the most part, mediation can be more cost-effective and time-saving than collaboration. You’re not trying to schedule and pay for the time of attorneys or other professionals.

  • Some states require confidentiality agreements for the mediation process. This is currently not required for collaborative divorce in any state. If you’re in a state where confidentiality laws exist and it’s important to you, mediation might be the better choice.

POSITIVES OF COLLABORATIVE DIVORCE

  • In a collaborative divorce, each spouse is represented by a collaborative attorney and these attorneys guide all facets of the case, making this process right if both parties want a divorce lawyer to look out for their specific interests throughout the case.

  • Couples struggling with communication issues or animosity often feel better having an attorney who can help them communicate more effectively or speak for each of them when needed.

  • Spouses and attorneys meet together to discuss issues, with the attorneys taking the lead.

  • The attorneys will advise the parties when they feel other collaborative professionals are needed to help resolve issues, freeing the spouses from making that decision.

  • At the outset, attorneys and spouses sign a “no court” agreement to help ensure the divorce is settled without litigation.

SOME DOWNSIDES OF EACH PROCESS

As with any type of practice, both mediation and collaborative divorce have disadvantages.

Says Doskow, “The primary downside to collaboration is that if it doesn’t work, your collaborative lawyer is required to withdraw, and you have to start all over with a new lawyer and possibly new experts and advisers. This means a lot of expense and delay while you get your new lawyer up to speed and retain new professionals.”

If mediation fails, you may also have to start over and will lose any money you’ve already spent on the process. “If you are concerned that mediation might not work, you should be sure you hire a consulting attorney who can go the distance with you,” suggests Doskow.

These are two very sound options for a more “reasonable” divorce process, but get all the information you can before making your choice. Contact me to learn how my practice supports both of these divorce processes and which one is right for you.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Can Mediation Work In A High-Conflict Divorce?

conflict resolution strategiesDivorce itself is difficult enough. Add animosity and lack of cooperation into the picture and the process becomes lengthy, expensive, and sometimes emotionally destructive.

From a Huffington Post article by Conflict Resolution Specialist Elizabeth Esrey, here are some facts about high-conflict divorce and some tips to survive the challenges it brings.

SOME DIFFICULT AND DISTURBING FACTS

A high-conflict divorce is the most expensive way to separate from your spouse, mostly because of the on-going litigation that results from one or both parties’ unwillingness to compromise or openly discuss issues. Full-scale divorce litigation averages almost $78,000.

This type of divorce also has a documented history of violence associated with it. “Family courts pit couples against each other – especially in high conflict divorce cases,” notes Esrey, and she cites several examples of people who shot their spouses because of hostile child custody and visitation battles.

Fortunately, there are ways to prevent outright tragedy in the divorce process.

DIVORCE MEDIATION IS A VIABLE OPTION

Even though the conflicts may at first seem insurmountable, a skilled collaborative law attorney or mediator can help even antagonistic parties to work together toward positive outcomes for everyone involved.

It’s almost like hostage negotiations, according to Esrey. The negotiator (mediator) listens actively, treats all parties with respect, and keeps working at the process to produce the best possible results.

“Judges and lawyers typically don’t deal with the emotional aspects of divorce. Mediators help couples navigate the divorce process and reach agreements that are less expensive, more lasting and customized.” And both legal and non-legal issues can be put on the table in mediation.

YOU HAVE A CHOICE

You always have a choice in how you will handle your side of the divorce process despite what is going on around you. Even if your spouse is not willing to participate, having a mediator in your camp shows that you want to bring respect and dignity to the divorce proceedings and you understand how divorce mediation can beat litigation in resolving difficult issues.

No matter what kind of divorce you’re experiencing, I can help you find positive outcomes through mediation. Contact me for more information.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Key Questions To Achieve The Goals Of Your Divorce

White conceptual keyboard - Legal advice (blue key)Hiring the right lawyer can be a critical decision in any legal matter, but it can be invaluable in your divorce planning–especially if the process will include some type of family mediation or collaboration.

In a recent article on Mediate.com, mediator Justin Kelsey outlines some effective questions to ask yourself about your desired outcomes as well as what to ask an attorney you’re looking to hire.

DETERMINE YOUR GOALS

According to Kelsey, you really should understand what results you want or expect before you meet with a lawyer/mediator. As he puts it, “If the lawyer doesn’t value or agree with your goals, then you are guaranteed to have a negative experience in your case.”

To that end, he suggests asking yourself:

  • What’s the most important issue you want to address?

  • Do you have certain outcomes in mind for specific situations like property division?

  • How do you hope your life will look when the legalities are over?

  • Do you have specific hopes/desires for other people involved in your case, especially in situations of child and spousal support?

  • Why are you deciding to work with an attorney, a mediator, or both?

ENSURE THE ATTORNEY IS A GOOD FIT

Once you know your own objectives, Kelsey advises that you find out if the attorney is right for your situation with questions like:

  • Do you understand and can you support my objectives?

  • What are some of the ways we could achieve my goals?

  • How would your role change if I hired you as an attorney/a mediator/both?

  • What are your strategies for conflicting situations, i.e. reducing tension versus obtaining the best outcome?

  • How will you handle disagreements we may have over the best way to achieve my desired outcomes?

“Going through any type of family dispute can be extremely stressful,” says Kelsey, “and you want to find an attorney that reduces that stress by understanding you and your goals.”

As an experienced divorce attorney and mediator, I understand how connecting with your goals is critical to making them happen. Contact me for more information on how I can help you achieve your desired divorce outcomes.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Maintaining A Parenting Plan After A Second Divorce

Parenting Plan Book For Child's Education And UpbringingYour first marriage ended in divorce, but you and your ex used divorce mediation to set up a workable parenting plan for your minor children. Now your second marriage is ending, and your current spouse wants you to rework that initial parenting plan in favor of your current family.

The good news is that you aren’t required to do this as part of your divorce planning. Here’s why.

“FIRST FAMILES FIRST” DOCTRINE

Under Illinois divorce law, and indeed in most states, support owed to a child from a first marriage/relationship does not have to be adjusted in order for a parent to provide support to a child/children from a second relationship.

From the court’s perspective, the second marriage is undertaken with the full knowledge of the existing support obligation and parties must accept that obligation as is. Thus the court will first deduct the support obligation owed to the children of the first marriage before calculating the amount owed to the second family.

Here’s a “real life” example. A man makes $100,000 and pays 20 percent in child support for his first marriage. He marries again, has a second child, and divorces again. The child of the second marriage is also awarded 20 percent, but it is of the remaining income of $80,000, meaning that child would get $16,000 (20 percent of $80,000). The first child’s support will not be affected in any way.

PARENTING PLANS

You worked hard in your first divorce to allocate parenting time and decision making. Perhaps the second divorce is causing an increase in stress within your home and for your children from the first marriage.

Generally, the court will not modify the first parenting plan without a compelling reason. These include mental illness, alcoholism, drug addiction, criminal activity, a troubling environment—in short, anything that can be clearly shown to have a negative effect on a child’s health, safety, and welfare.

Modification of an Allocation Judgment or Parenting Plan, however, will also be considered if both parents agree to the new plan parameters and for other situational factors, all of which consider the child’s best interests. Any modifications should be written, signed by both parents, and entered with the Court.

DIFFICULT DECISIONS

Ending any marriage is difficult, but your second divorce does not have to affect your first parenting plan or allocation judgment, unless you or the court feel it’s in the best interests of the children.

Family mediation and the collaborative divorce process can help divorcing couples resolve their issues to everyone’s satisfaction. Contact me to see how your divorce can benefit from this process.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

A Totally New Image Of Divorce

New image of divorceSocial media has become the place to share meaningful life occasions such as birthdays, engagements, marriages…and now divorces.

ENTER “DIVORCE SELFIES”

The growing trend of “divorce selfies” shows newly divorced couples happily together, often outside the courthouse, after finalizing this major life change.

According to a recent article on Mediate.com by Hadassah Fidler, this trend actually represents the changing face of divorce from an angry and bitter separation to a scenario where “emphasis is on conciliatory divorce and mediation,” which is especially important for couples with child custody and visitation concerns.

It’s an outcome most everyone would like, but it doesn’t happen without work.

LOOKING BEHIND THE SMILES

Although divorce selfies give the impression that the divorce planning process was easy and uncomplicated, Ms. Fidler sees them as a statement of successfully navigating a very difficult situation. “It is not saying that there was not a lot of hurt and obstacles to overcome along the way,” says Fidler. “It means that there were, but they were overcome and here we are on the other side.”

These pictures prove that while an amicable divorce is challenging it’s also quite obtainable with the help of divorce mediation professionals.

MANAGING EXPECTATIONS

The expectation of collaborative divorce is that it will be a smooth process with no difficulties or hard feelings, so when these do occur many couples want to give up. A good divorce mediator helps couples to manage their expectations and ultimately announce that they worked through the issues and separated amicably–without a long and expensive court battle.

Ms. Fidler comments that “you are much more likely to come out with a divorce selfie from mediation than you ever will from litigation” because mediation allows “each person to move forward and still retain a civilized workable relationship with their former partner.”

Is your goal to have a cooperative divorce (and maybe post your own divorce selfie)? Contact me to learn how I can help make this happen.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Recent Illinois Divorce Maintenance And Child Custody Rulings

divorce decreeSummarized below are two recent court rulings involving spousal maintenance and child custody issues in two Illinois divorce cases.

SPOUSAL MAINTENANCEIn re Marriage of Roberts

After 37 years of marriage, a public school teacher filed for dissolution of marriage from her husband, a disabled pharmacist. When determining spousal maintenance, the trial court ruled to divide the wife’s pension plan equally between both parties but denied the wife’s request for spousal maintenance. The court did not include the husband’s Social Security disability benefits as part of the decision, citing that these benefits cannot be considered in property division.

The wife filed a motion for the court to reconsider this, stating that this ruling would cause her financial hardship upon retirement because it would prevent her from having the same standard of living she achieved during the marriage, while her husband would have the ability to pay. She requested that the pension money be awarded solely to her or, if split with her husband, that he pay monthly maintenance to her equal to the amount he would receive from pension plan. When the trial court denied this motion, the wife filed an appeal.

The appellate court ruled that the trial court was correct in not considering the husband’s Social Security benefits in marital property division. However, Social Security benefits can be used in determining a maintenance award, and “the trial court abused its discretion in denying petitioner maintenance outright and not reserving the issue of maintenance until a later date.”

They reversed the trial court’s order denying maintenance and ruled that when the wife retires the court must consider the value of her husband’s Social Security benefits in determining the amount of maintenance that she will receive.

CHILD CUSTODYHeisterkamp v. Pacheco

In this case, a father filed a malpractice suit against the clinical psychologist appointed by the court as an expert in the father’s divorce proceedings. The psychologist diagnosed the father with obsessive-compulsive disorder. The father contended that this “diagnosis deviated from the standard of care in clinical psychology and, as a direct and proximate result, [he] lost custody of his children.”

The father claimed that the psychologist was appointed only to advise the court of his children’s wishes around child custody and visitation, and the psychologist exceeded this role by seeking and being granted approval to force the father into psychological testing.

In the end, the court ruled against the father and in favor of the psychologist stating that the “[psychologist] acted at the direction of the court in the dissolution proceedings and [is] entitled to absolute immunity regardless of whether the direction given was proper under section 604(b)” of the Marriage and Dissolution of Marriage Act.

These two cases highlight the hardships–legal fees, time in court, family disruption–that can often be avoided by using settlement-based divorce practices such as family mediation or collaboration in the divorce process.

If you’d like to reduce or prevent these types of difficulties in your divorce, contact me for more information.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.