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Top 10 Things I have learned in my 10 years as a practicing Divorce Attorney

Posted on in Divorce

By: Sean P. Sullivan

DuPage County Divorce Lawyer

  1. Do not stay together for the sake of the children.

Often times I have heard clients say that they would have gotten divorced sooner, but they wanted to stay together for the sake of the kids. This generally does not work, and in fact, can often have the opposite effect. When two people stay together not because they want to, but rather because they feel they have to— it actually creates more tension and stress in the home. This, in turn, places more stress on the children. Children sometimes feel as if they have to pick sides between two people they love and this causes them great stress, whether they admit it or not. Do not put your children in this position, if the relationship between you and your spouse has broken down to the point that you are considering a divorce, do not let the fact that you have children stop you from exploring the possibilities of a divorce. In addition to being a divorce attorney, I also serve as a court-appointed Guardian Ad Litem (GAL). As a GAL, I am tasked with “being the eyes and ears of the Court” and advocating for the best interests of the children. In this capacity, all too often have I have seen the emotional toll that befalls children living with parents who no longer like each other. Divorce is difficult for children no matter what. What will help your children through the divorce process is to split apart and establish new routines and living arrangements and to always keep your children’s wellbeing at the forefront throughout the process. Children are resilient and more adaptable than parents often realize.

  1. Do not argue, discuss with, or debate aspects of the divorce with children present.

To some degree, this is an extension of my first point. But, again as a GAL I have seen firsthand the emotional effect it can have on children when they feel they are being put in the middle of their parent’s divorce. Thus, I think it is important enough to list it as a stand-alone point. Divorce is the process dissolving the bonds of marriage between you and your significant other. It is not about destroying the other person’s relationship with their children, or more importantly, destroying your child’s relationship with the other parent Children do not need to hear the intricate details of why the relationship has broken down, or how awful it is living with your significant other. This behavior not only harms the child but also exposes you to allegations from the other side and provides them with a reasonable basis to argue for parental alienation. The bottom line, Judges do not like this type of behavior, and it will not end well for you if the Judge has to rule on this issue.

  1. A separation is just as good as a divorce.

A separation is not just as good as a divorce, in fact, there are several key differences.  To truly do a legal separation correctly it requires nearly as much work as a divorce, but it is not a divorce. Should you decide you need to pursue a divorce at a later time, you are likely going to have to start all over from scratch and duplicate much of the work that’s already been done. A legal separation does not allow you to remarry. A legal separation likely will not allow you to continue to receive benefits if you are on your significant other’s insurance plan. People used to get a legal separation instead of a divorce simply to retain eligibility for their spouse’s benefits. Most of the insurance companies have closed this loophole such that if you are formally separate, you are no longer eligible for your spouse’s benefits.  There may be some exceptions to this, but as a general rule, you are likely to be ruled ineligible by insurance companies.

That said, there are certain circumstances where it may make sense for the parties to separate their assets without incurring the expense of a full divorce. Second marriages and non-traditional marriages are a good example of this. In those cases, parties may have a legitimate reason to remain married but need to separate their finances. It those situations, the same goals could be achieved with a post-nuptial agreement.

  1. We must follow the terms set forth in the Settlement Agreement to a T.

A marital settlement agreement (MSA) is just that—an agreement between the parties. This is the written agreement the parties enter into to resolve all the issues of property settlement and asset division without the matter going to trial.  As long as both parties are in agreement to engage in a course of conduct that is different from what is spelled out in the MSA, Courts generally do not have a problem with it. In fact, a well written MSA should have language that allows the parties to alter the terms of an MSA pursuant to the written agreement.  The key part is the written agreement. Without proof that the other side consented to the change in practice, it is difficult to prove mutual agreement should the matter have to go to Court. However, it is critical that you consult with an attorney because some matters, such as child support, can not simply be agreed to in writing by the parties.

  1. I can save money by using my spouse/significant other’s attorney.

This might save you money in the short term, representing yourself, also called a Pro Se litigant,  but is likely to cost you a lot more down the line. Remember, your spouse’s attorney is representing your spouse’s interests, not yours. In fact, that attorney cannot give you advice as to whether something is in your favor or not. Often times I find parties who come to me after their divorce has been finalized and a settlement entered because they agreed to something that was not in their favor and they never should have agreed to it in the first place. In my experience, sometimes this requires almost as much time as was spent on the divorce to craft new terms for addressing the property division or entering into what is called a post-decree agreement. For example, I have seen clients who agreed to child support figures or maintenance payments that far exceeded what they should have actually been paying for based upon their level of income according to the law. However, without an attorney representing their interests, there was no one to question the other side’s calculations. Before you know it, these clients are in the hole in back support, are incurring interest or other penalties on these sums that were never correct in the first place, and unless and until they file a motion to modify these amounts for support, they are going to continue to be required to pay this incorrect sum.

I am always glad to represent these people and help them try to gain more favorable terms, but the best outcome and most cost-efficient option would have had been if they simply retained me earlier and avoided entering into an unfavorable agreement in the first place.

  1. I’m tired of paying attorney’s fees, I’m just going to agree to any Settlement Agreement my Spouse wants because I just want this over with.

Logically, this point follows the previous one. Yes, divorces can be costly, and yes, you will likely have to pay an attorney to represent you to secure a favorable result. But simply agreeing to any deal offered (just because you do not want to pay an attorney to review it for you) increases the likelihood that you end up with a deal that is not favorable to you or you do not fully comprehend and requires you to retain an attorney at a later date to address the issue. Also, this is when people run the risk of compromising short term relief for long term regret.

  1. I have proof that my significant other …. It will make my case better!

You can insert whatever nefarious or salacious act you can accuse the other party of (adultery, drug abuse, frivolous spending), the simple fact that they engaged in that act alone, will not necessarily win or lose your case. Illinois is a “No-Fault” divorce state, parties are no longer required to prove grounds such as adultery, or habitual substance abuse in order to get a divorce. While the bad behavior may be relevant for the purposes of determining parenting time, decision-making authority, or a claim for dissipation, it is not going to make the Judge more likely, or less likely to grant your divorce.

  1. I’m going through a divorce so it is no big deal if I buy a house… a car… etc.

Until the Court enters a Judgment dissolving your marriage, you are not divorced. Therefore, under the laws of Illinois, any property you acquire while you are married is the property your spouse can claim a portion of. Acquiring an item of significant value during the course of your divorce (be it a new house or a new car) not only leaves open the possibility that your soon to be ex could be awarded it…. It complicates your attorney’s ability to determine the assets in the marital estate and how to most equitably divide them.

  1. My…. (sister/brother/cousin) got a divorce last year, so my divorce should have the same outcome, right?

Possibly, but it all depends upon what the particular facts are of your sister/brother/cousin’s case were. There is no cookie-cutter or one size fits all when it comes to how a divorce should be resolved. The terms along which your divorce will be decided are in direct correlation with the specific facts of your case. The facts specific to each case directly impact the time, cost, or terms by which the divorce is settled.  Therefore, you need an attorney who you trust, are comfortable with, and who can present the specific facts of your case to the Judge in a light that is most beneficial to your goals of resolving your case. You also need an attorney who truly understands that no person likes getting divorced, wants to help you through this process as quickly and efficiently as they can, while still being your advisor, advocate and protect your rights under the law.  

  1. It’s ok if I don’t understand my settlement agreement, or parenting plan, my attorney just needs to understand it.

Of course, your attorney understands the agreement, that’s what we spent all this time and money on law school for — to understand how to interpret wordy documents, written in a weird format, that no one else understands. But your attorney is not the one who’s daily life may be impacted by the terms set forth in a divorce decree. You need to have at least a basic understanding of what the implications to your life will be if a decision is made that is contradictory to the terms set forth in the MSA. This document is not controlling your attorney’s life, it is controlling yours.  

To put this into perspective, I will use an example I see time and time again.  A couple of dates for a short period of time, suddenly realize they are definitely not meant to be and wonder how they ever actually liked the other person in the first place…. Then imagine just after the break up one party realizes they are pregnant and a child is borne. They are now going to have to interact with each other for, at minimum, the next 18 years. It is going to be a long 18 years if you do not understand the terms of any agreement.  

I hope you found this article informative and helpful.  The advice of a quality attorney can make all the difference in family law matters.  If you have a family law matter and are exploring your legal options, feel free to contact my firm, SBK Law Group for a complimentary initial consultation to discuss your matter and how, if retained, I may be able to help.

 

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