Why You Need Your Own Divorce Attorney Instead Of Relying On Your Spouse’s Lawyer
Divorce can begin cooperatively and still involve decisions that affect your finances, your children, and your future for many years. You and your spouse may agree to avoid unnecessary conflict, keep legal expenses reasonable, and resolve the case without a lengthy court battle. Those goals can be worthwhile, but they do not mean that one attorney can fairly protect both spouses’ interests. Your spouse’s lawyer represents your spouse, not you, even when that attorney is polite, helpful, and willing to explain documents.
I believe having independent legal representation in Schaumburg is especially important when an Illinois divorce involves children, parenting time, parental decision-making responsibilities, maintenance, child support, real estate, retirement accounts, significant assets, or disputed debts.
Your Spouse’s Divorce Attorney Does Not Represent You
One of the most important things to understand during an Illinois divorce is that your spouse’s attorney owes professional duties to your spouse. That lawyer’s job is to protect and advance your spouse’s legal interests. Those interests may overlap with yours on some issues, but they can also directly conflict with yours regarding property, support, parenting arrangements, or settlement terms.
Illinois Rule of Professional Conduct 1.7 addresses conflicts of interest involving current clients. Illinois Rule of Professional Conduct 4.3 also provides important protection when an attorney deals with an unrepresented person. A lawyer representing one spouse cannot imply that the lawyer is neutral, and when the unrepresented spouse’s interests may conflict with the client’s interests, the attorney generally may not provide that person with legal advice other than advising the person to obtain counsel.
This distinction matters because there is a significant difference between explaining what a document says and advising you whether signing it is in your best interest. Your spouse’s attorney may prepare a settlement agreement that accurately reflects the terms your spouse wants. That does not mean those terms protect you. My role when representing a divorce client is to examine the proposed agreement from that client’s perspective and identify obligations, risks, or rights that might otherwise be overlooked.
Independent Representation Matters When Children Are Involved
Illinois family law uses the terms “parenting time” and “allocation of parental responsibilities” rather than relying primarily on the older terminology of custody and visitation. Under 750 ILCS 5/602.5, significant decision-making responsibilities involving a child may include education, health care, religion, and extracurricular activities. Unless the parents reach an agreement that the court approves, the court may allocate those responsibilities according to the child’s best interests.
These provisions can have long-term consequences. A parenting agreement should address much more than which parent has the children on particular days. It may determine who makes medical decisions, who chooses schools, how extracurricular activities are handled, how information is exchanged, and how parents resolve future disagreements.
When I represent a parent, I consider how the proposed arrangements will actually function in that parent’s life. A schedule that sounds reasonable during a short conversation may create serious problems involving school nights, transportation, holidays, vacations, work schedules, or exchanges. Your spouse’s lawyer has no obligation to identify those problems for you.
Illinois Parenting Time Decisions Are Based On The Child’s Best Interests
Parenting time is governed principally by 750 ILCS 5/602.7. Illinois courts allocate parenting time according to the child’s best interests. The statute directs courts to consider factors including the wishes of the parents, the child’s wishes when appropriate in light of the child’s maturity, the amount of time each parent previously spent performing caretaking functions, the child’s adjustment to home and school, the physical and mental health of those involved, transportation considerations, and each parent’s willingness and ability to encourage the child’s relationship with the other parent.
Illinois law generally presumes that both parents are fit. Restrictions on parenting time ordinarily require a finding that the parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. That is a substantial legal standard, and allegations involving safety, abuse, substance use, domestic violence, or serious instability require careful handling.
I represent clients on either side of disputes involving parenting time, parental responsibilities, paternity, and other family law issues. Whether someone is seeking additional parenting time or responding to another parent’s request, the facts and evidence must be evaluated from that person’s individual position.
Parenting Time And Decision-Making Are Separate Issues
Parents sometimes assume that receiving significant parenting time automatically gives them equal authority over major decisions. Illinois law treats these concepts separately. Section 602.5 governs significant decision-making responsibilities, while Section 602.7 governs parenting time. A parent may therefore have substantial parenting time without receiving equal authority over every significant decision affecting the child.
Illinois law also addresses parenting time for parents who have not been allocated significant decision-making responsibilities. Under 750 ILCS 5/602.8, a parent who has legally established parentage generally has a right to reasonable parenting time unless the court makes the required findings concerning serious endangerment or significant impairment of the child’s emotional development.
These distinctions are another reason I caution against signing parenting documents simply because your spouse’s attorney says the provisions are standard. The language used in a parenting plan can affect your rights in ways that may not be obvious until a disagreement occurs months or years later.
Your Financial Interests Also Require Independent Review
Divorce is not limited to ending the marriage. It may require the court to determine how property and debts are classified and divided. Under 750 ILCS 5/503, property acquired during the marriage is generally considered marital property unless it falls within a statutory exception. Illinois follows equitable distribution principles, which means marital property is divided in just proportions after consideration of statutory factors rather than automatically divided equally.
Issues involving a house, business, pension, 401(k), investment account, stock compensation, bank account, credit card debt, or property owned before marriage can become financially significant. A proposed settlement may appear fair based on the dollar amount assigned to each spouse while producing very different long-term financial results.
I review both what a client receives and what the client gives up. That analysis can include tax consequences, liquidity, debt exposure, retirement implications, refinancing requirements, deadlines for transferring property, and whether adequate financial disclosure has occurred before an agreement is signed.
Maintenance And Child Support Can Affect The Settlement
Maintenance is governed by 750 ILCS 5/504. In determining whether maintenance is appropriate, Illinois courts consider factors including each spouse’s income and property, financial needs, earning capacity, impairment of earning capacity caused by domestic responsibilities, the duration of the marriage, age, health, and other relevant circumstances.
Child support is addressed under 750 ILCS 5/505. Illinois law generally uses an income shares model that considers both parents’ incomes when determining the basic support obligation, subject to statutory calculations and possible adjustments.
These financial issues may interact with property division and parenting arrangements. Agreeing to one term can affect another part of the settlement. Independent counsel can evaluate the overall agreement instead of looking at individual provisions in isolation.
You May Have Options For Addressing Attorney Fees
Some people remain unrepresented because their spouse controls most of the marital income or because they assume they cannot afford their own lawyer. Illinois law contains provisions intended to address significant differences in the parties’ ability to pay legal expenses.
Under 750 ILCS 5/508, an Illinois court may, after considering the parties’ financial resources and other applicable statutory requirements, order one party to contribute toward the other party’s reasonable attorney fees and costs. Illinois law also provides mechanisms for interim attorney fees in appropriate divorce proceedings.
An inability to immediately match your spouse’s legal spending therefore does not necessarily mean you must proceed without representation. The availability of a fee contribution depends on the circumstances of the case, but it is an issue worth discussing before assuming that independent counsel is financially impossible.
An Amicable Divorce Still Benefits From Separate Attorneys
Having your own lawyer does not mean you are preparing for a hostile divorce. In many cases, independent representation can make settlement easier because each spouse can receive confidential advice before agreeing to final terms. Questions can be resolved early instead of becoming disputes after judgment.
I can tell my client whether a proposal appears reasonable, explain the legal consequences, recommend revisions, and identify provisions that should be added for protection. Once both parties understand their rights and obligations, they may be more comfortable entering an agreement voluntarily.
A divorce judgment can control important aspects of your financial life and your relationship with your children long after the case closes. Saving money by avoiding independent legal review may become very expensive if an unfavorable provision later creates a dispute that requires additional litigation.
Frequently Asked Questions About Having Your Own Illinois Divorce Attorney
Can My Spouse’s Divorce Lawyer Give Me Legal Advice Too?
Generally, you should not treat your spouse’s attorney as your legal adviser. The attorney represents your spouse and owes professional duties to that client. Illinois Rule of Professional Conduct 4.3 specifically addresses dealings with unrepresented people and prohibits an attorney from giving legal advice, other than advice to obtain counsel, when the attorney knows or reasonably should know that the person’s interests conflict or may conflict with the client’s interests.
Do We Really Need Two Lawyers If We Agree On Everything?
You are not required to create unnecessary conflict simply because you obtain independent representation. Even spouses who agree on the major terms may benefit from having separate lawyers because the legal consequences of those terms may not be obvious.
Can My Spouse’s Lawyer Prepare All Of The Divorce Documents?
Your spouse’s attorney may prepare documents on behalf of your spouse, including a proposed marital settlement agreement or parenting plan. You should understand, however, that the documents are being prepared within an attorney-client relationship that does not include you.
I frequently evaluate whether proposed language adequately protects a client’s interests. Sometimes the basic agreement is acceptable but needs additional provisions. In other situations, apparently minor language can create substantial financial or parenting consequences. Independent review allows you to make an informed decision before signing.
What Happens If I Sign A Divorce Agreement Without My Own Attorney?
A properly executed settlement agreement that is approved and incorporated into an Illinois divorce judgment can become legally binding. Certain provisions may later be modifiable, while others may be difficult or impossible to change merely because you later decide the bargain was unfavorable.
Speak With The Law Office Of Fedor Kozlov About Your Illinois Divorce
If your spouse has already hired an attorney, you should remember that the attorney represents your spouse’s interests, not yours. Before you sign a marital settlement agreement, parenting plan, property agreement, or other document that may affect your family and finances for years, having independent legal advice can help you understand exactly what you are agreeing to.
The Law Office of Fedor Kozlov represents clients in Schaumburg and throughout Chicago, Illinois, in divorce and family law matters involving parenting time, allocation of parental responsibilities, paternity, property division, child support, maintenance, and other family disputes. The firm can represent either side of a family law matter depending on the circumstances and existing client relationships. Contact our Schaumburg divorce lawyer at the Law Office of Fedor Kozlov by calling (847) 241-1299 to schedule your consultation.
