What is a collaborative divorce in Illinois and how does this differ from a traditional contested divorce?
Collaborative divorce in Illinois is a way to become divorced using the Collaborative Process (CP). Effective January 1, 2018, the Illinois Collaborative Process Act, 750 ILCS 90/1 et seq. was enacted. This Act formally recognizes CP as an alternative dispute resolution model to litigation and traditional court process. The model has been practiced in Illinois since 2002, when the Collaborative Law Institute of Illinois (n/k/a Collaborative Divorce Illinois or CDI) gave the first basic skills training to lawyers and mental health professionals.
Soon, financial professionals who work with separating couples also started to train, and Illinois became a “Collaborative Team Approach” state. The Team includes a lawyer for each of the spouses, a neutral financial professional and one or more mental health professionals depending on the need of the family and if there are children or not. Training in both CP and mediation are a prerequisite for membership in CDI, the statewide organization which provides professional and public education in the model. Among other things, Collaborative Process requires that the spouses participate with informed consent under a written document known as a “Collaborative Process Participation Agreement” (Participation Agreement), to voluntarily discharge “their collaborative process lawyers and law firms if their collaborative process fails.”
How is a collaborative divorce initiated in Illinois, what is the process and who is involved?
Typically, a collaborative divorce is initiated by one or both spouses having a consultation with a professional trained and practicing CP.
That professional is sometimes but not always a Collaborative Lawyer. As the acceptance of the model has grown over the last 20 years, it has now become customary that the initiation of a collaborative divorce will come about because the couple’s mental health providers or financial advisors have referred the couple to the process.
Is a collaborative divorce different from mediation and Alternative Dispute Resolution?
Yes. Alternative Dispute Resolution (ADR) is the umbrella term for models of dispute resolution such a mediation and CP. Mediation is a process by which a neutral facilitator helps the couple communicate directly in a confidential setting about self-determined outcomes for their divorce and other issues. Even if the neutral facilitator is a lawyer, that facilitator is ethically prohibited from giving legal advice during the mediation process. CP differs in that generally, there is a professional team (legal, financial, and mental health professionals) that serves as a network for the couple and helps them make future-focused plans for themselves, their children, the finances, and their future. CP uses mediation skills and a mediator can also be added to the professional team if the case warrants that addition.
What are the pros and cons of collaborative divorce in Illinois?
Pros:
-Allows the couple to work in a private, confidential structure to keep control over the timeline, the final decisions for themselves and their family, and the costs of the divorce
-Legal professionals work with a counterpart advisor facilitating conversation, option generation and sustainable outcomes, not as adversaries fighting for one or the other outcome only.
-The process requires a pledge to full disclosure of all information and documents needed to resolve matters fully and to a respectful, open, and honest dialogue aimed at generating the best outcome for all the stakeholders, most especially the children.
Cons:
-Not all family lawyers or allied professionals are trained in the model, so it still might not be readily available in your jurisdiction, and you will have to seek it out.
-Sometimes, there is a perception that because it is a “Team Approach,” it might not be affordable, and this prevents couples from considering CP before proceeding to traditional litigation.
-The CP professional team will be terminated if one member of the couple decides to exit the process and litigate.
Is collaborative divorce right for me?
The only way to know if CP is right for your divorce is to be educated about all the process options available to you before you start down the path of divorce. Under the Uniform Collaborative Practice Act, Collaborative Lawyers have an affirmative obligation to educate clients about the different approaches to divorce and help the client make the decision as to which process best suits their circumstances.
What are the advantages of collaborative divorce in Illinois? What is the success rate, and what are the options if collaborative divorce fails?
The advantages are that you can have a streamlined, private process that is future-focused using tailored advice on legal, mental health, and financial matters in creating a sustainable plan for yourself and your family’s future.
It is estimated that approximately 95% of all divorces using CP are resolved without recourse to the Illinois Court for adjudication. As with all ADR models, if a couple is not successful in resolving their issues in CP, then one or both of them must submit their matter to litigation and leave the decision-making for their family up to a judge after an evidentiary hearing or trial.
Published by: www.lawyer-monthly.com