Whether you are considering divorce, or are in the middle of one, it’s important to learn about the divorce process in Illinois as it can be extremely complicated. Attorney Madilyn Keating Ellsworth offers up advice to those exploring the divorce process in this podcast, while explaining some of the common divorce mistakes, and touching upon issues such as property division, litigation, and whether or not you should retain a divorce lawyer.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Madilyn Keating Ellsworth, Associate Attorney at Boyle Feinberg P.C.
As an associate attorney at Boyle Feinberg, P.C., Madilyn has assisted the partners and senior associates in handling dissolution and parentage matters, allocation of parental responsibilities and removal disputes, orders of protection, maintenance and support, contested evidentiary hearings, the disposition of marital and non-marital assets, post-dissolution matters, and prenuptial agreements. Madilyn has also completed the IICLE New Lawyer Institute, an intensive two-day program focusing on procedure,law, strategy, and practice.
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Read the Transcript of this Podcast Below.
What advice would you give someone who is just starting their divorce?
The advice that I would give to someone just starting their divorce process is first to identify your goals and expectations for the outcome of the divorce that you want. For example, if one of your goals is to maintain the marital residence, or for instance you would like to have the majority of parenting time, or even you would like to retain a family business that you and your spouse had begun during the marriage, these are all important objectives to identify as goals of the outcome of your divorce process.
Second, I would suggest that you use those objectives to help you find an attorney that you believe will best represent you to achieve these outcomes that you desire. Different divorce attorneys may have more expertise or experience in areas that are important to you based on your individual situation. The better understanding that you and your attorney have about what’s important to you, the easier it will be for your attorney to represent your interests.
Is there such a thing as too much information when it comes to talking to your attorney?
Often the answer is no. Communication is vital to a successful relationship with your attorney.
While not every detail about your marriage or situation is always completely relevant to your representation, it’s very important that you feel comfortable disclosing information to your attorney. Also providing more information rather than less can help your attorney with your case.
Experienced attorneys are able to sift through information that you give and help you focus on the matters and details that are relevant and pertinent to your case. Attorneys can help you identify what they need to know, even if you don‘t realize the importance or why they’re important.
On what basis can a divorce be granted in Illinois? Does fault make a difference in determining the outcome?
As of 2016 Illinois is a no-fault divorce state. Fault based grounds like infidelity or mental cruelty are no longer applicable and make no difference in the outcome of your divorce. The only ground for dissolving a marriage in Illinois is now what’s called irreconcilable differences. As before irreconcilable differences means that there was an irretrievable breakdown of your marriage, your efforts at reconciliation with your spouse has failed, and future attempts at reconciliation with your spouse would be either impracticable or not in the best interests of your family.
How long does the divorce process usually take in Illinois and is there anything that can be done to shorten the process?
The duration of a divorce case in Illinois really depends on the individual situation as well as the presiding court. However, it’s very common for complex or contested divorces to take upwards of a year or even more. A few of the factors affecting the duration of each case include the number of issues involved and their complexity, whether children are involved, whether the parties have reached a settlement, or if they will require a trial, and the volume of cases before the presiding court.
To help shorten the process parties can try to reach an amicable settlement of as many issues as possible, as this will help decrease the number of contested issues before the court as well as the frequency of court appearance.
In divorce litigation is there always a trial or is it possible to settle out of court?
In divorce cases it’s certainly possible and indeed encouraged for parties to reach an amicable settlement if possible, rather than proceed to a full trial. Indeed, I’ve often heard judges take the position that it’s better for parties to take control of their own case and decide their own future by settling contested issues rather than have an unfamiliar third party such as the judge make decisions after a trial.
What happens if divorcing couples just can’t reach that amicable settlement that you were talking about? What happens if their divorce case ends up going to trial?
If they’re contested issues in a divorce case the parties can’t work out between themselves and their attorneys, then it may be necessary to proceed to court for a hearing or a full trial. If a case does go to court the parties will file the necessary pleadings or motions according to a briefing schedule which will be set by the court.
These pleadings set forth each party’s position to the court on a particular issue and lay out the basis of their positions and arguments. After the necessary pleadings are filed the court will conduct a hearing on the particular issue. The court will listen to both parties’ arguments and the evidence presented.
The court considers the relevant case law, any statutory authority, and all of the evidence and issues a decision.
If one party decides not to retain a lawyer will he or she be held to the same standards in court as an attorney?
Yes. In Illinois individuals who represent themselves are referred to as pro se litigants. Pro se litigants are held to the same standards as a licensed attorneys. This means pro se litigants are expected to know the law, the rules of courtroom practice, and all professional standards. This is obviously an extremely difficult if not impossible task for someone not educated or experienced in the legal field, or even further a specific of area of practice such as divorce. That’s why it’s wise to hire a licensed attorney to represent you in your legal matter.
What is discovery and when does it occur during the divorce process?
Discovery is a pre-trial procedure for parties to obtain evidence from each other through various means. Examples of discovery are document requests, interrogatories, subpoenas and the like. Discovery begins shortly after the initiation of a divorce proceeding and generally continues to be updated throughout the duration of the case in preparation for trial.
If the divorcing couple has resolved everything except how to divide some of their property, does the judge decide the entire case or only the areas where the couple didn’t reach an agreement?
Judges encourage parties to settle as many issues between themselves as possible. The court will decide any issues that remain unresolved between the parties. In other words if the parties are able to resolve allocation of parental responsibilities and parenting time, but they cannot agree on the division of their estate, then the court will only have to hear arguments related to the division of the estate.
Can high conflict divorces be resolved through negotiation or is it really only possible to resolve that kind of dispute through litigation?
High conflict divorces can certainly be resolved through either means. Courts and attorneys generally encourage parties to mediate their contested issues to the full extent possible. Even if parties are unable to agree completely or completely negotiate their high conflict divorce, courts will try to get the parties to agree on as many issues as possible to narrow the contested issues that would have to be heard in a trial or hearing.
What does the court look at when dividing assets in a divorce?
When dividing assets in a divorce case the court looks at numerous factors. These factors include, but aren’t limited to, each of the parties’ contribution to marital or non-marital property, dissipation by either party of marital property, the duration of the marriage, the value of property, and the agreement by the parties, the parties’ age, health, occupation, skills of the parties, whether maintenance is awarded to either party, as well as each party’s opportunity for future acquisition of assets and income.
You mentioned dissipation, what does that mean in the context of a divorce?
Dissipation is the use of marital assets for a non-marital purpose. Oftentimes during a divorce one spouse will utilize assets for their own benefit for the purpose that does not further anything related to the marriage. Courts are protective of marital assets and do what they can to maintain the integrity of marital assets throughout the divorce proceedings so that the parties are in as well of a position as possible upon the dissolution of the marriage.
Can you give us an example of what might qualify?
An example of dissipation would be if the parties have a large amount of money let’s say in a savings account or held as another asset, and one of the parties uses those funds or their income for purposes not related to the marriage such as going on a spending spree, purchasing luxury items, going on luxury vacations, spending the money on their paramour, any expenditure of marital funds or marital assets that’s not related to expenses or purposes that the parties had agreed to and had utilized the funds for during the marriage.
Is it better to litigate or to settle a case. I’m wondering what are the advantages or litigation versus settling out of court. And is it true that going to court is the only way to ensure that you’ll get your fair share?
The strategy of whether to litigate or settle a case really depends on the particular circumstances of each case. In some situations there’s an opportunity to negotiate or mediate all of the contested issues. In other situations mediation is a completely futile process and the parties will never get anywhere trying to resolve the case amongst themselves.
Mediation can be a cost-effective means of resolving a divorce under the right circumstances. However under other circumstances a trial may be the only way to obtain the desired results.
What are some of the most common mistakes you’ve seen people make during the divorce process?
One of the most important mistakes that I think people make is failing to keep in mind the big picture and the strategy that you and your attorney have come up with for your divorce case. The entire divorce process can often be a long process and can be both emotionally and sometimes financially draining.
Trying to keep your focus on the big picture allows you to remain cost-effective in your approach to your divorce. It also helps to ensure that you do not get caught up in the pettiness of the divorce process, and also helps you pick your battles wisely to achieve the primary objectives that you and your attorney have identified as the goal of your outcome of your divorce.