Divorce Questions Answered By Schaumburg Divorce Lawyer
What is an uncontested divorce, and how does it differ from a contested divorce? Do most people realize there are two ways to approach divorce?
Sometimes I have clients who know that there’s a difference between uncontested and contested. I would estimate that 50% of the clients know prior to our consultations. If they don’t, then usually do not say if their divorce is uncontested or contested, they just say they want to get a divorce. In those cases, they usually don’t know much about the divorce process.
What that generally tells me as an attorney is, if the person knows there’s a difference between uncontested and contested, they’ve either been divorced before or have already spoken to a couple of other attorneys.
The name kind of speaks for itself on both types. With an uncontested divorce, clients are usually coming in with an agreement on how they want things done. At that point it’s my job as an attorney to write down what they expect, and also anticipate the things they are not aware of, things that are really specific to my knowledge of the law as a practicing lawyer.
Sometimes the parties are going to already have agreed on child support amounts, maintenance amounts, or how they want to divide their assets, but in other cases, they just agree that they want to get a divorce.
Contested divorce gets a little bit more difficult. The couple agrees that there’s a problem in the relationship, but they don’t agree on everything. Maybe one party doesn’t want to pay the other maintenance, which previously was called alimony. Sometimes, one party thinks they shouldn’t have to pay child support. Sometimes people think that they’re not the biological parent of any children, or that someone’s not entitled to property that might be a marital asset. Many times, clients are not even certain if something is a marital asset or if it is a nonmarital asset.
If there’s a prenuptial agreement involved, usually it’s going to be a contested matter. Sometimes a case is contested just due to the fact that one person wants to get divorced and the other still wants to work on the relationship. In those cases, the person who does not want the divorce may make the process hard because they would like to reconcile the relationship.
The case becomes contested because you only need one person to want out of the relationship to be able to meet the Illinois requirements for irreconcilable differences and thus, get a divorce. A contested divorce has so many different aspects to it, and it is a much longer process because you’re having to fight, not only to get your way but sometimes even just to initiate the civil proceedings and begin the case.
Can a couple married 10 years with a house, a retirement, and some vehicles can still choose uncontested divorce?
Absolutely, that is very common. When people have been together longer, sometimes that can make the issues a little deeper and cause them to fight more. However, sometimes it means that they both just know how to speak to each other well enough to say “I’ve known you for 15 years, this is what you want, this is what I want, let’s not continue with a relationship that isn’t working out.” I’ve had clients who have been married for more than 20 years, and they agree on how the payments are going to work, which person gets what property, etc.
They’ve got things already sorted out. So it doesn’t matter the length of the marriage, and it doesn’t matter the number of assets you have, or if you have no assets, you can come in and have an either uncontested or contested divorce. The only thing that matters is the relationship between the parties, if they have some kind of idea of what they want, if they know what their goals are, and if those ideas align.
Is it true an uncontested divorce is less expensive because everything is already worked out, there isn’t going to be time spent negotiating issues?
Yes – and unfortunately, sometimes people know that and clients will come into the office and say “this will be an uncontested matter”, just hoping to get a smaller fee. Some attorneys and offices, including my office, offer a flat fee structure. Meaning it is a one or two-time payment that will take care of the whole uncontested matter.
My office allows there to be some negotiating room as well. We will take something as an uncontested matter even if the couple hasn’t figured out the amount of maintenance, alimony, or child support, that’s going to be paid because it is common the client just needs a little bit more help in understanding how those calculations are made. When the parties otherwise agree on everything, and the divorce can stay pretty much uncontested. That does help to save some costs for people.
With contested matters, you’re going to be charged at an hourly rate. The prices for that can vary in a huge range of prices. This range depends on the fee structure that you have set up with the attorney, what kind of things the attorney bills for, (some offices bill for communication, some don’t. Some reduce their billing for travel time, some don’t), and much more.
There are also some overcharging issues that happen with attorneys, and we see people coming into our office all the time who are switching to a new attorney, and they will say “I think I’m getting over billed and I need an attorney who’s going to represent me, not just bill.” So those uncontested matters, having everything worked out beforehand, can save you a lot of money.
Why would an individual want to switch to a new attorney?
There are a couple of good reasons for wanting to switch to a different attorney. Clients will go into an attorney’s office and just want help immediately. They will hire the first attorney they see and hope the attorney is going to be an advocate who helps them through the court process and be there for support. However, some clients don’t realize what kind of relationship they are going to have with that Attorney going forward. As they spend more time together they realize the relationship isn’t as strong as they would like, and feel like maybe there is a disconnect.
So we have people switch attorneys just because they feel less comfortable with one attorney than the other. I know that there are times when a client would prefer an attorney of their same gender or even of the opposite gender. There are times when clients have unreasonable expectations, and that’s why they switch attorneys. Sometimes fee structures from an Attorney are the reason that a client switches attorneys. The concentration of the practice is another big reason for switching.
We have clients who’ve had an attorney for other areas of their life, whether it’s business disputes, estate planning, criminal law, or some sort of medical malpractice, who doesn’t generally practice family law, and the client went to him/her because they were comfortable with that attorney. Once the case gets a little down the road, they realize they might want to find an attorney that has more experience in this field.
There are a few nuances, and the law has changed pretty significantly over the last five years, so it does take someone with a focus on divorce law to make sure that you’re going to get everything resolved in the way you want.
Is there any point in the divorce that you don’t want to seek out another attorney? Is it ever a good idea to switch attorneys so late in the divorce process?
I would always advise that if you’re not comfortable with who your attorney is, or how they handle their practice, that you at least talk to another attorney about what they can do to help you. It doesn’t mean that you should automatically switch just because you may not like everything your attorney is telling you. Interpretation is a huge portion of our job as counsel, Attorneys have to figure out what we believe the Judge thinks, Attorneys have to figure out what the law says, and understand a client’s life who we haven’t known beforehand.
So maybe an attorney tells you something you don’t like. I wouldn’t advise you immediately jump to a new attorney in that situation. However, if you feel uncomfortable, it’s perfectly normal to talk to another attorney and see if they would be a good fit for you. I would always caution someone to avoid falling for an immediate sales pitch on switching with an attorney.
This is a business where people are not taking pro bono cases. So there is always a financial incentive for an attorney to sign somebody up. That being said, finding a good fit for you is always in your best interest. It is always the right move.
As far as whether or not it’s legal to do so, all attorneys in Illinois have to follow the professional rules of ethics, and the professional rules for the ARDC (attorney registration and disciplinary commission). Generally what that says is that you’re not allowed to withdraw or change counsel, on the eve of trial, not just the day before.
If you’re a week or so out from the trial, or maybe a final hearing, the court may say no, your attorney needs to stay involved at this point because you’re just going to delay the legal process, and that’s going to slow down the court. Maybe the court feels it’s a delay tactic. So there are times that you’re not able to switch an attorney.
In short, if you need to do it, then switch as soon as possible. Don’t wait till the day of trial to decide you don’t like what’s happening. Don’t sign into any sort of final agreement if you’re not very satisfied with your representation, because once you’ve signed some documents, it becomes much more difficult to switch.
What happens when someone is unable to find their spouse, perhaps a spouse has moved away without ever starting the process, and now they want a divorce?
That does tend to happen a lot. I’ve got multiple cases with that right now. It is more common than you would expect. Illinois civil rules of procedure mandate that we have service of process. What that means is if you’re suing someone or you’re involved in a lawsuit with someone, you have to be able to give them all copies of the documents that you’re filing, and notify them that a lawsuit is going on. So if you can’t find that other party, that absolutely can make it very difficult.
In Illinois, you’re supposed to begin by using the sheriff for whatever county you’re in, or whatever county you think that other party lives in, to try and serve them. Most sheriffs in each county have a website that you can go to, to give the missing party whatever documents need to be provided from the court. If you’re not able to do that, you can file a motion for a special process server. Most law firms already have special process servers that they work with regularly.
My firm loves our process server, he is very responsive. A special process server can make effective service, they just need to be a person who’s over the age of 18, not involved in the lawsuit in any other way, doesn’t stand to financially gain from the resolution of a lawsuit, and be of sound mind to go and make service. A process server does the same thing that a sheriff would do, they drive to the house, or they do other investigations to determine where the missing party may reside.
If you’re not able to find someone through a special process server or the sheriff, you can file a motion for service by publication. At that point, you need to complete a military affidavit, which is a document where you certify to the court that the person isn’t overseas or in the military. You perform a “skip trace”, which is an online tool to try and locate someone.
You find the last known County that the person resided in, and then you have to publish in the newspaper that there is a lawsuit, how they can go about finding information on the lawsuit, and whom they should contact if they’d like to proceed with the lawsuit or fight against the lawsuit.
After you’ve resolved or exhausted all three of those options, the court will still allow you to go and get a divorce. Even if the other person doesn’t show up or even make their presence known. You complete your divorce by what’s called “default” and have a default prove-up hearing for your final divorce hearing. So, there is a way to get divorced if you’re not able to find your spouse, but it’s a little bit longer of a process.
We have all watched movies where someone is served with divorce papers, how true is Hollywood’s version of being served divorce papers versus how it happens in real life?
Process Servers do have to deal with some interesting situations when trying to make service. Sometimes people are trying to avoid service. So a lot of process servers will make sure they have body cameras on so that they can record the entire interaction. They will make sure that their presence is non-threatening and that the person knows what the server is there for.
Even still, there are instances where somebody doesn’t want to be served or is upset about being served with legal documents and it can be a bit of a dramatic situation. So I can’t say that Hollywood has it completely wrong in how they portray it on TV. However, I’d say it’s not regular for it to be as dramatized as it has been on screen.
Is it true it’s always best to accept the divorce papers when you’re being served because the alternative would be your divorce is going to proceed and you won’t be a part of it?
Yeah, you’re 100 percent correct. If you see the process server, and will not take the documents, that doesn’t mean that service hasn’t been made. All you’ve done is kept yourself away from reading the documents, and you’ve slowed yourself down. Now you’re going to have to reach out to somebody, whom you don’t have the contact information for, to see what it is they were trying to give you. It’s always best to accept service. If you’re confused about what the lawsuit itself is about, immediately go and speak to an attorney. Most attorneys will do free consultations.
Avoiding service just delays an inevitable process. It can be something that the court remembers, because the entire time that you’re not accepting service, the other party is going before the court and asking for extensions to be able to serve you. They’re likely describing how difficult you’re making it. Judges are smart, they remember, and they take notes. So it comes back out later if you’re being difficult throughout the proceedings.
Is it ever possible to keep a divorce private, in terms of not having to file the divorce at the clerk’s office?
There are instances in general where you can keep the majority of the proceedings private, or involve as few parties as possible with what’s going on. So for instance, if you’re willing to work with your spouse, and have an uncontested divorce, or even in a contested matter, you can avoid involving the sheriff’s office, doing the publication, or having a process server show up to where you live or your place of work by signing a waiver of service.
A waiver of service is an Illinois Supreme Court form that allows you to waive the service of process, you just sign a form, send it back in, and file your appearance. Nobody has to show up at your house or your work. So you can keep that portion of the proceedings private. All the negotiations themselves can be kept private by having a marital settlement agreement separate from your judgment dissolving the marriage. You can avoid having the settlement agreement filed with the clerk’s office so it can stay out of the court record itself.
Most Family Law proceedings, even if they were going to be recorded by the court, are protected by Illinois laws for unreported case law. That occurs because the proceedings contain protected information that the government agrees not everyone needs to have open access to. So you’re going to have to file your case, and it’s going to have to be recorded by the court because the marriage was a legal transaction and needs to be undone legally.
However you can still keep all of the details private, you can keep the finances private, you can keep children’s names private, you can keep your name private for the most part. But you do need to have a certain portion of it filed to make sure that it’s a legally sufficient and a binding dissolution of your marriage.
Generally, the court doesn’t try and pry on things that you want to keep private. One of the things that happen in the final stages of a divorce is you have your final hearing that we call a prove up. Both parties will communicate and testify before the court that they’ve agreed on what they would like to assign as marital property and who would be awarded the property. That can be done through a document that the court can accept and not have you testify to it.
So that way, it’s not part of the court transcript or record that the court reporter takes down and saves on all the court records. Most Attorneys are very sensitive to clients’ privacy concerns. It’s not in anyone’s best interest for the public to know what kind of assets you have out there or what your kids may inherit later on if your kids’ names are also brought into it. So most attorneys are sensitive to that and are good about keeping those kinds of things off the court record.
It just depends on how well the counsels work together. If you and your spouse both have counsel and they get along and you agree that you want to protect certain interests, then you can do that. A lot of times what happens is only one spouse will go and get an attorney. That attorney is only allowed to represent one of the parties, but it doesn’t mean that the parties can still mutually work together for an amicable resolution.
Both parties can work together to draft the settlement agreement in everyone’s best interest even if you only have one attorney involved. While attorneys are supposed to have a zealous representation of their client, that doesn’t have to be at the complete disadvantage of the other party. So it’s okay for there to be only one attorney involved and for that person to then make sure everyone’s interests are protected.
Contact our Schaumburg Family Law Attorneys
If you have more questions on divorce in Illinois contact our Schaumburg Divorce Lawyers here or give us a call at 847-380-5193.