The Anatomy of an Illinois Divorce

Every divorce is unique. The issues confronting different families are rarely the same. Some families face serious financial problems. Other families deal with conflicts involving children. Others simply can’t agree on how to divide the pie. Nevertheless, in my nearly 25-year-career, I have observed certain threads common to all proceedings.

Phase I: “Crazy Time”
Unless a case is uncontested, there are three basic phases to all cases. The first phase, which I call “crazy time,” is the period when emotions are typically raw and one or both of the parties are unnerved. This is the beginning of the case when everyone is usually scrambling to figure things out. During this period and we are trying to maintain some semblance of order. For example, we spend most of our time addressing all of the temporary issues, e.g., where everyone is going to live, who is going to be paying what bills, etc. These issues may be resolved in a few weeks or they can take several months. Sometimes it is necessary that we go to court and enlist the judge’s help. It is always advisable that people immediately start counseling or coaching to try to process the intense emotions and life-altering events. My job during this period is to help keep things calm, make sure no major mistakes are made that will affect the balance of the case, and help you refine your realistic goals.

Phase II: The Middle
The second phase of the case is where we really get to work. This is when we identify all of the issues and facts. If it’s determined that there are any issues with regard to the children, you will typically start mediating those issues with a trained divorce mediator. A mediator is a neutral third person (not either of your lawyers), who will sit down with you in an attempt to help you achieve an agreement. In my opinion, mediation is a wonderful resource for the most part, and it can actually be therapeutic as it unfolds.

Also during this middle period, we attempt to make sure we have all of the financial information we need. Under our local court rules, both parties need to exchange financial disclosures outlining their income, expenses, and their opinion regarding the value of various assets. Oftentimes this is insufficient and we need to do additional work to make sure we have all the information necessary to make an informed decision regarding the issues. For example, we can issue a subpoena to your spouse’s employer to obtain records regarding retirement benefits, bonuses, and other important information. We can require your spouse to complete a financial questionnaire. We can also take his or her deposition, which is an opportunity for me to ask them questions, which they need to respond to under oath. We conduct the deposition at one of the lawyer’s offices. Finally, we can require your spouse to produce all documents necessary for us to verify information.

Frequently, we need to have experts involved. Experts serve a variety of purposes in divorce cases. For example, we use accountants to account for funds that are hard to trace. We also use accountants to identify income. While it may be surprising, one of the most difficult things we do is trying to determine the income of someone who is self-employed. Tax returns rarely tell the whole story. Frequently there are perquisites and other income that accountants analyze for us. If there is a business owned by either of you, we frequently use business evaluators to help us determine what the value of the business is. In a divorce case, courts rarely allow co-ownership of a business post-divorce unless you both agree. Therefore, we need to determine the value of the business so there can be a buy-out. For example, if the business is determined to be worth $1 million, the other spouse would be awarded $500,000.00 as an offset. In some situations, we need other experts to value real estate, antiques, artwork, or other collectibles. These people serve a valuable purpose in that they help us get all of the correct information necessary to work on the settlement.

Again, during this second phase of the case, we are doing our homework and figuring out where we may have disagreements. If mediation does not result in an agreement regarding the children, there are a variety of things the Court may do. The Court may appoint a guardian ad litem, who is a specially trained attorney who will represent your child during this proceeding. The guardian’s primary role is to be the “eyes and ears” of the Judge. If child custody is an issue, the guardian will talk to teachers, doctors, family friends, etc. to address the various issues. Child custody is determined based upon a “best interests of the child” legal standard. For the Court to determine the best interests of the child, it needs a substantial amount of information.

Frequently, Courts will rely on psychologists to do evaluations and make recommendations regarding the best interests of the child. If you cannot resolve custody, and the Court appoints a psychologist, that person will meet with you, your spouse and the children (depending upon the ages of the children). The psychologist will observe you interact with your children and give you certain psychological tests to determine whether you or your spouse has any personality disorders or mental problems. A test may also be given to the children to determine what their preferences are, although they will not be asked directly who they want to live with.

During this middle period, the lawyers are also trying to independently gather information that will support our case with either the guardian ad litem, the psychologist, or, ultimately, the Court. We also have the subpoena powers of the Court to get records and other information necessary to help your case.

As an aside, custody cases are incredibly destructive for families. These proceeding should be entered into as a last result, not a first option. We strenuously urge you to try to work out those issues in mediation. Custody cases can cost well in excess of $100,000.00, and few families have the resources to afford that type of litigation.

Phase III. Resolution
The final phase of the case is the resolution. This is the time that we are negotiating settlement or preparing the case for trial. We have a number of options on how we resolve cases:

1. Four-way conferences. These are settlement conferences where we meet with your spouse and his or her attorney to try to work out issues out face to face. This can be very effective in the right case, but sometimes cases are too volatile to work things out in this fashion. I like these types of conferences because they tend to humanize the conflict, thus allowing us to make real progress. I use them often.
2. Written proposals. Sometimes we simply put together a settlement proposal and send it in a letter to your spouse’s attorney. This is really the traditional way of settling cases. This method is a bit cumbersome and takes more time because turnaround can sometimes take 6 weeks from letter to letter. But, again, in a volatile case, this may be a useful tool in terms of settling the case.
3. Mediation of all issues. Sometimes we will use a trained mediator to help us settle the case. This may be done with or without lawyer involvement. Again, the mediator is trained to work out an agreement. The mediator is neutral and impartial and can help resolve issues even when there are attorneys involved. I regularly urge using mediators to help settle financial issues as well as custody issues.
4. Arbitration. Traditionally, arbitration uses private arbitrators to decide issues prior to going to court. When I use the term arbitration, I typically refer to the process of allowing a court to decide issues without a full hearing. For instance, maybe the only issue is the amount of alimony to be paid. Instead of having a full trial, the attorneys will present their arguments and appropriate documentation to the Court. The Court will hear the arguments and make a decision. That decision will resolve that issues which allows us to settle the entire case. While court decisions in this fashion are typically non-binding on the parties, everyone can agree to make the ruling binding, thus concluding the troublesome issue. I have used this type of dispute resolution frequently and find it to be an efficient way to resolve cases.
5. Kitchen table. You and your spouse sit down at the kitchen table, take out some paper and work things out on your own. This is ideal and always the least costly method of dispute resolution. You need to make sure that before you commit to anything, you advise your spouse that you need to run it by the lawyer in case there are any unforeseen mistakes or consequences.

In the event that we cannot settle, a trial date will be set. We conclude cases by one of two methods: either you reach a settlement or the Judge will conduct a trial and impose a ruling on all issues. The longest trial I have been involved in lasted 25 days. Depending upon the issues, a trial can be as short as 2 hours. Usually, the length of a trial falls between those extremes.

We conduct trials in family like any other type of trial. There are no juries and the Judge decides all of the issues. The attorneys call witnesses and examine them. Documents are presented to the Court, and all the rules of evidence apply. While, we try to avoid the necessity of a trial, sometimes your spouse is simply so unreasonable that a trial may actually be the least expensive way of concluding the conflict. I have encountered people over the years that are so obstreperous, so angry, or so totally out of control that it is silly spending years trying to negotiate with them. Clearly, the judge’s common sense will result in a better disposition than trying to negotiate with a crazy person.

I believe my role as your attorney is twofold: educator and conflict manager. As an educator, I inform you about the laws as they affect your life as well as the repercussions and consequences of a possible decision. I strive to keep you focused on the best interest of your children, as well as your own best interest. I educate you about your various options regarding settlement versus trial and, finally, help you refine your goals and objectives.

As a conflict manager, I manage the conflict as efficiently and appropriately as possible. My goal is to help you work through the dispute in a way that is least detrimental to you and your family. I frequently tell people that it is silly to spend a dime to get a nickel. By this, I mean that I manage the conflict in a way that is economically responsible so unnecessary fees are not spent achieving certain goals.

As I previously mentioned, I have been practicing family law for nearly 25 years. My late father, David Peskind, was also a lawyer who concentrated his practice in family law. I have been involved with over 1,000 divorces over the course of my career. Over the years, I have seen many profound mistakes that people make. However, I have also seen the tremendous successes by people who handle their conflict maturely and responsibly. Divorce, while never fun, need not be the destructive tornado exemplified by the movie “The War of the Roses.” If people hire responsible and mature attorneys, and keep their focus on their children, the results are rarely traumatic and, sometimes, the process can even be redemptive.

---Steven N. Peskind