Divorce can be a painful and stressful process in Illinois, even when a couple is willing to work together to avoid heading straight to a courtroom. Complicated divorces can bring with them heartache, conflict and dishonesty as each spouse attempts to get what they believe to be rightfully theirs. An Illinois collaborative law attorney knows that couples who are able to combine forces for a better outcome are more likely to do what is best for the other family members that may be involved.
In Illinois, state law requires all divorcing couples to divide their jointly-held assets as justly as possible. These equitable distribution laws promote fair, but not always equal, property division. In cases where a couple can agree on how their marital property is to be split, legal intervention is typically not needed. However, if one spouse attempts to hide property or wants to fight for certain assets, a judge may have to step in and take control of the process. For those divorcing spouses who want a say in how their marital estate is handled, collaborative law may be a better option.
What is collaborative law?
Unlike the traditional litigious divorce, a collaborative law divorce focuses on cooperation and mutual respect as spouses dissolve their marriage outside of the courts. The end goal of the collaborative process is a settlement that meets the needs of both spouses, as well as their children. With the assistance of lawyers who have extensive training in the collaborative law process, spouses agree to resolve all differences in a respectful manner.
Those pursuing a collaborative divorce should sign a participating agreement in order to promote the teamwork required to avoid courtroom intervention. Each spouses’ attorney should also sign an agreement that commits them to facilitating the process as effectively as possible and also prevents them from serving as legal counsel should the collaborative divorce fall through.
Illinois’ discovery requirements
All dissolutions of marriage in Illinois must follow state statues regarding the division of property. This requires that both spouses honestly disclose all assets that may be subject to division under state law. An Illinois collaborative law attorney understands that formal discovery is not required within a collaborative divorce. In a traditional divorce, a judge or either of the spouses may appeal for a discovery investigation if hidden assets are suspected. However, a couple who chooses collaborative divorce gives up the right to the methods that courtrooms may use for effective discovery of assets.
Upon request, spouses can be required to sign an affidavit that fairly discloses all marital property as part of the collaborative process. Subpoenas may also be used to gain full disclosure, if necessary. As part of the participation agreement, spouses should understand that the failure to honestly disclose any property could result in legal consequences, including the forfeiture of the collaborative divorce.
The importance of a financial expert
In addition to the attorneys hired by each divorcing spouse, a team of experts is brought in to provide neutral guidance on a wide range of issues that typically come up when a marriage is ending. An important member of that team is often a financial expert. Determining how to split up assets can be one of the most complicated and contentious aspects of a divorce, and without the help of a financial professional couples may find themselves becoming stuck on certain issues that could be better handled by someone with expertise.
When utilized properly, a financial expert may assist a couple by providing guidance and communication techniques. In general, the most common types of property that have to be allocated to each spouse include the following:
- Real estate
- Retirement accounts
- Investment portfolios
- Business interests
In most cases, married couples acquire these types of assets with the help of a qualified professional, so it makes sense that an expert is needed to effectively distribute those same assets. While intentionally hiding assets can cause problems, doing so without realizing it can also create difficulties when striving to reach a settlement agreement.
When collaborative divorce may not be the right option
A collaborative divorce is a realistic divorce option for many people, but there are some circumstances that may make it difficult to reach a positive solution without the involvement of the legal system. Couples who have complex financial situations may find it challenging to mutually agree on how shared assets should be assigned. Tax implications and the consequences of losing ownership of a valuable piece of property can increase the likelihood for contention.
All information must be disclosed voluntarily, unless a subpoena is requested, which can make it easy for spouses who have control over a couples’ assets to hide income. When businesses or professional practices are involved, if there is a suspicion of hidden assets or if one spouse is domineering, a collaborative divorce may not be a wise choice.
Beginning the process
If a couple determines that collaborative divorce is the right choice for their unique circumstances, they may choose to contact an Illinois collaborative law attorney. Starting the proceedings as soon as possible may make it easier to go through with this alternative to traditional divorce. The practice of ending a marriage and apportioning fair shares of the marital estate does not have to be a litigious process if each spouse, their attorneys and their team is willing to promote good communication, mutual respect and a full understanding of the importance of making it work.