Questions Answered On Getting Divorce During COVID in Illinois
If couples are considering divorce during COVID, what are some important things they need to know ahead of time?
There have been a lot of changes in the process of getting a divorce in Illinois now that COVID has taken effect. For example, couples now need to think about the division of stimulus checks. Most couples have joint filings every year for their taxes. This means the stimulus relief checks sometimes can be cashed by either spouse. That is based on their combined taxes, their 1099s, W-2s, or the rest of their tax documents.
Knowing where your stimulus check is being sent, so it is not misplaced, is very important. Also knowing who is going to claim a minor child for the tax deductions for the next coming years, and what benefits that spouse going to get under new stimulus relief bills is important.
It is also important to make sure that if you’re doing some sort of supervised visitation, that there’s a supervision facility that is open for you, and that you know what that facility’s restrictions and rules are.
I have seen cases where there are issues between parents who want to take the kids on a vacation out of state. Right now the CDC rules say that you should have a 14 day quarantine period after any traveling. That means that when you have the vacation, you’re going to be without your minor child for that time and you’re also going to miss them for whatever the CDC mandatory quarantine period is.
Many schools have had issues with the quarantine period too. Schools want to make sure that the child is staying with the same parent returning from any sort of vacation. This has made travel and vacations a huge change for people when dealing with minor children during a divorce as well.
During their consultation, what questions should people ask an attorney if they want to file for divorce during COVID?
If you’re looking at doing a consultation with an attorney’s office, and they’re not doing an in-person consultation, you’re going to miss out on the kind of ability to read whether or not you think an attorney is a good fit for you. That is a huge issue. Doing a phone consultation doesn’t allow you to understand each other as well as you would like to, even if you spend an hour or two on the phone, you’re not understanding the character of the attorney that you’re talking to.
Phone consultations have become an issue in dealing with the intake process with the client-attorney relationship, but it’s not insurmountable. I always suggest going with a video conference, if you can’t do an in-person consultation. If an attorney says they would rather do a phone consultation, you may want to at least take a few of those consultations to make sure that you’re finding a law firm that is a good fit for your needs.
If you’re going to do a phone consultation, see more than one attorney so that way you know whether or not you’re getting all the information you need by being able to compare what each attorney says to you.
Picking up on the subtle things, which can reveal whether or not you will be a good fit with an attorney is much more difficult over the phone – or even a video conference, correct?
Right. Absolutely. When I get a call from the bank, and they’re asking me for my social security number, I don’t like giving that over the phone, because that is private information. In a divorce, you are going to have to share a lot of private information as well, including your financial assets, you’re going to have to talk about your bank accounts, retirement accounts, what your future goals are, you’re going to have to give some intimate details about your life, and your finances. It is hard to feel comfortable doing that when you have only ever spoken with your attorney over the phone.
Doing that all on the phone removes you from the process a little bit, which is nice if you want to be able to stay emotionally unconnected from the case, but it does make it hard to trust that your attorney has your best interest in mind and that you’re not just another phone number to them. I try to allow my clients to come in and meet with me, or at least make sure someone else will be available if they need a face-to-face. Make sure you wear a mask though when you come in for one of these consultations. It’s for everyone’s health and safety that you do that.
Do couples still have to appear in court to finalize their divorce during COVID restrictions?
Yes and no. It is going to depend on what county you’re in. So, McHenry County is having trials and some final prove ups in person, depending on the judge. Cook County is almost completely online right now I even did a Zoom Trial at the end of February. That case’s whole process was through Zoom, which means people can be at home, as long as they have an internet connection and a device with a camera they’re allowed to testify at home.
The issue that some people have had with a remote process, is you need to make sure that you’re in a place where you don’t have any documents in front of you because the court wants you to testify from memory. You can’t have anyone else around to coach you while you are giving your answers either. It is easy for the court to see when you look off-screen for a minute, and someone else is telling you what you should be saying.
How should I prepare for a remote meeting to make a good impression on the court?
You want to make sure that you’re in an area that is quiet enough for you to actually participate and give the court the respect it deserves. You’re still dealing with the judge, they’re in a robe, they’re sitting at the bench, and they want to be respected. They deserve the respect.
When you pull over on the side of the road and you’re in a T-shirt and have sunglasses on, the court notices that and doesn’t feel like you’re giving them the respect that they’re due. They know that you didn’t put as much time into their court appearance that you would have if you needed to appear before the judge in person. Those are things we prepare clients for beforehand.
Zoom is kind of an animal in and of itself. It’s a great program, most of the courts are using Zoom, but it does have issues just like any other technology. Technology is helpful until all of a sudden there’s a problem, and then it is a nightmare. It is important to practice being on zoom, and make sure you understand how the microphone works, how the camera works, how to mute, and unmute yourself, or remove your video. Those are all important steps that an attorney needs to be able to explain to their client and needs to be able to competently do themselves.
It’s always nice when an attorney who is not as good with technology has some people around them who can assist with technology. It’s always nice when attorneys have extra devices available for clients when they come into the office. You can still show the court that you’re attempting to socially distance by being on separate devices. Those are all extra considerations that the court has been happy about when they see it. I’ve seen attorneys and their clients get in trouble for not making sure to take those little extra steps.
When is mediation beneficial for couples who are considering divorce?
There are two different divorce and family law types, you’ve got a pre-judgment, and you’ve got post-judgment litigation. Prejudgment is when you’re filing your initial divorce, or you are filing to establish paternity. Prejudgment means that you’re going to be separating and getting your initial case with the court. You don’t need to mediate in those cases.
In cases, when a child is present, you want to consider where you’re going to mediate. There are a lot of really good groups that can help with mediation. In Cook County, there’s a council of mediators. All of those resources are on the websites for each county. In post-judgment cases, the parties are supposed to mediate before coming back to court.
The only time you don’t mediate is if you have an emergency, when something’s come up that is so urgent, you don’t have time to schedule mediation. Usually, this will be something that is going to have an immediate, detrimental, and irreversible effect within the next two weeks. Then you wouldn’t go to mediation. Otherwise, schedule yourself for mediation first, before going to court. If you’re the one to schedule, and if the opposing side doesn’t schedule or do mediation with you, you’re going to look like the good guy because you have tried to take all the right steps before needing a judge to get involved.
Is the cost of divorce mediation split between both parties?
It can be, the mediator expects it to be a 50-50 division for what their costs are. Although if you’ve got one party who’s not agreeing to show up, you can be sure they will not cover half the costs. Usually, the cost of mediation can be subject to reallocation, which is when asking the judge to make the parties pay based on their ability to afford the mediation.
Generally, you’re looking at a 50-50 split for the cost of mediation. The only reason that you really wouldn’t have a 50-50 split is if the difference between your income is so great and so obvious that the court would award a split more in favor of one party over the other.
Is mediation binding?
No. That’s a good question to point out. Mediation is not binding. Mediators are generally attorneys, or retired judges, or someone who’s been in the legal profession for a significant amount of time. The purpose of a mediator is that they give really good recommendations. Their recommendations can be viewed by the court, the courts are allowed to see what the mediator has suggested.
However, the mediator is not allowed to make any binding decisions unless the parties agree to it. If the mediator drafts a Mediation Report for what they’ve found to be the issues between the party and what they’ve recommended, and both people signed and agree that the recommendation of the mediator should be followed, it can become binding, but that would just be because both parties agreed to it.
There isn’t a detriment to going to mediation. If you go, and the mediator doesn’t agree with you, that’s okay. You don’t have to agree with the mediators’ decisions. Also, If you go to mediation and you try and engage in a good faith mediation, you may learn a lot from the mediator who’s been in this field of practice for a very long time, and you may figure out what it really is that your ex-partner is looking for. This can help you learn how better to negotiate with them.
What are reasons for going to mediation?
So you have two really good reasons to go to mediation. It’s a win-win. Court costs are expensive. Every time you’re in court, you are going to have to pay for the attorney’s time. If you can go to mediation with just you and the person that you have a dispute with, you’re going to save yourself quite a bit of cost. Maybe you’ll even resolve the issues to where you feel like you’ve got a healthy ability to discuss future problems as well, and not need the court system to get involved.
Another huge benefit is that a mediator is usually a retired judge so they’re going to give you a recommendation that is very close to what your judge is going to rule anyway. They’re going to give you all the tools on how to go and speak to the judge, and you’re going to get a good practice run if you needed to go to a judge later. It is to everyone’s benefit to take in as much information as you possibly can before making any final decisions on what you think your position should be in a dispute or what you think that you’re entitled to by law.
See our recent Q&A post regarding common divorce questions answered by our Schaumburg divorce lawyers here.
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