Are there other benefits to mediating or negotiating a settlement?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

Yes. A divorce resolved by a mediated or negotiated agreement can have these additional benefits:

Recognizing common goals. Mediation and negotiation allow for brainstorming between the parties and lawyers. Looking at all possible solutions, even the impractical ones, invites creative solutions to common goals. For example, suppose you and your spouse both agree that you need to pay your spouse some amount of equity for the family home you will keep, but you have no cash to make the payment. Together, you might come up with a number of options for accomplishing your goal and select the best one. Contrast this with the judge who simply orders you to pay the money without considering all of the possible options.

Addressing the unique circumstances of your situation. Rather than using a one-size-fits-all approach as a judge might do, a settlement reached by agreement allows you and your spouse to consider the unique circumstances of your situation in formulating a good outcome. For example, for the Thanksgiving holiday, the judge will likely order you to alternate the holiday each year, even though you both would have preferred to have your child share the day.

Creating a safe place for communication. Mediation and negotiation give each party an opportunity to be heard. Perhaps you and your spouse have not yet had an opportunity to share directly your concerns about settlement. For example, you might be worried about how the temporary parenting time arrangement is impacting your children, but have not yet talked to your spouse about it. A mediation session or settlement conference can be a safe place for you and your spouse to communicate your concerns about your children or your finances.

Fulfilling your children’s needs. You may see that your children would be better served if you and your spouse decide their future rather than have it decided by a judge who does not know, love, and understand your children like the two of you do. Judges do their best to be fair, but without knowing the temperaments and personalities of your children, it is hard for them to structure a parenting plan that maximizes the children’s interest.

Eliminating the risk and uncertainty of trial. If a judge decides the outcome of your divorce, you give up control over the terms of the settlement. The decisions are left in the hands of the judge. And, despite their best efforts, judges sometimes make mistakes. If you and your spouse reach agreement, however, you have the power to eliminate the risk of an uncertain outcome.

Reducing the risk of harm to your children. If your case goes to trial, it is likely that you and your spouse will give testimony that will be upsetting to each other. As the conflict increases, the relationship between you and your spouse inevitably deteriorates. This can be harmful to your children. Contrast this with mediation or settlement negotiations, in which you open your communication and seek to reach agreement. It is not unusual for the relationship between the parents to improve as the professionals create a safe environment for rebuilding communication and reaching agreements in the best interest of a child.

Having the support of professionals. Using trained professionals, such as mediators and lawyers, to support you can help you reach a settlement that you might think is impossible. These professionals have skills to help you focus on what is most important to you, and shift your attention away from irrelevant facts. They understand the law and know the possible outcomes if your case goes to trial.

Lowering stress. The process of preparing for and going to court is inherently stressful. Add to this the mounting costs and the uncertainly of the result. While negotiation or mediation is not stress free, it usually pales in comparison.

Achieving closure. When you are going through a divorce, the process can feel as though it is taking an eternity. By reaching agreement, you and your spouse are better able to put the divorce behind you and move forward with your lives.

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on Amazon.com by clicking here.

Is Illinois a “no-fault” state or do I need grounds for a divorce?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

Although Illinois requires grounds for a divorce, you may be eligible for the no-fault grounds of “irreconcilable differences.” If you have been separated for two years prior to the final divorce hearing, you may get a divorce if you can prove that irreconcilable differences have caused the irretrievable breakdown of the marriage, that past attempts at reconciliation failed, and that future attempts would be impracticable and not in the best interest of the family. Couples can agree to waive the full two-year waiting period if they have been separated for at least six months. Separation does not require living in separate homes; rather, separation refers to the emotional relationship. If you both consider the marriage dead at a given point, you are considered separated even though you continue to reside in the same home.

Despite the frequent use of the no-fault grounds of irreconcilable differences, Illinois law still allows one spouse to allege fault-based grounds such as mental cruelty, physical cruelty, adultery, abandonment, and a variety of other grounds. If you do allege fault grounds, you will need to prove those grounds at a trial. If you can’t prove grounds by sufficient evidence, you cannot proceed with other issues, and the divorce cannot be granted. Today, grounds are mostly symbolic, and the court can’t consider them when deciding other divorce issues such as maintenance, support, or property division. You gain no advantage in the divorce by alleging fault versus no- fault (irreconcilable differences) grounds.
Sometimes people allege fault grounds because they are angry with their spouse––often rightfully so. But once you start the fight it is often hard to stop it when you become less angry.
Although there is nothing wrong with symbolically ex- pressing your dismay over your spouse’s conduct, the better approach is to go to counseling and learn to emotionally pro- cess the betrayal. Don’t use the divorce proceeding as your method of choice to seek revenge. That frequently backfires and will only hurt you (and your children) more. 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on Amazon.com by clicking here.

I’m unsure about how to tell our children about the divorce. What's the best way to tell them?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

Your discussion with your children will depend upon
their ages and maturity. Consider consulting with a therapist or
psychologist to determine the best way to approach this delicate

topic. When possible, both you and your spouse should

tell the children about the divorce together so that the children

can see a united front. If your spouse won’t participate, do

your best to communicate the fact of the divorce in a way that

does not malign your spouse, even if he or she is legitimately

blameworthy. For the sake of your children, do your best to

control your emotions.

 

Children often blame themselves for their parents’ divorce.

Be sensitive and reassuring to them. Emphasize that the divorce

is not their fault. In this instance, less is more; don’t get into the

nitty-gritty causes for the breakup. This information just hurts

the children. Reassure the children that everything will be OK

and that they will continue to see both parents regularly.

After the initial discussion, keep the door open by creating

opportunities for them to talk about the divorce. Use these

times to acknowledge their feelings and offer support. Always

assure them that the divorce is not their fault and that they are

still loved by both you and your spouse, regardless of mom

and dad’s breakup. If necessary, you and your spouse should

discuss having the children attend counseling to help them

understand and cope with their emotions.

 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on Amazon.com by clicking here.

 

 

My spouse and I both want our divorce to be amicable.

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

An amicable divorce is not always possible, but all should strive for one. An amicable divorce will not only make your lives easier and save you money in attorney fees, but will result in an outcome you both are more satisfied with. Lower-conflict divorce will help you transition more easily after the divorce.

 

Find a lawyer who understands your goal to reach settlement and encourage your spouse to do the same. Some lawyers are incapable of compromise, so when you research potential attorneys, try to determine whether a particular attorney can work cooperatively with the other side. Personal references from former clients are always the most insightful. Lawyers who can’t compromise are not likely to help you settle your case amicably.

Be proactive: compile and provide all necessary information to your lawyer and urge your spouse to do the same. Then ask your attorney about the options of mediation and negotiation for reaching an agreement. Even if you are not able to settle all of the issues in your divorce, these actions can increase the likelihood of agreement on many of the terms of your divorce.
 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on Amazon.com by clicking here.

During my divorce, what am I responsible for doing?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

Your attorney will explain what actions you should take,
but consider the following:

• Keep in regular contact with your attorney. Get a new
password-protected e-mail address to communicate
with the attorney. Make sure you check your e-mail
daily.
• Update your attorney regarding any changes in your
contact information, such as address, phone numbers,
and e-mail address.
• Avoid any major decisions (like selling an asset or
moving in with a boyfriend or girlfriend) without first
advising your attorney.
• Provide your attorney with all requested documents
and information promptly.
• Complete forms and questionnaires. Confirm with
your attorney any deadlines for completion.
• Appear in court on time and dressed appropriately.
• Be direct about asking any questions; you are not
bothering your attorney if you have a question.
• Tell your attorney your thoughts on settlement or
what you would like the judge to order in your case.
• Remain respectful toward your spouse throughout the
process.
• Be respectful to your attorney and his or her staff (we
all have crabby days but they are there to help; don’t
take out your frustration on them).
• Scrupulously comply with any temporary court orders,
such as restraining or support orders. Notify your
attorney immediately if you are unable to comply with
the order.
• Advise your attorney of any significant developments
in your life or your case.

By doing your part, you enable your attorney to partner
with you for a better outcome while also lowering your attorney
fees. If you don’t cooperate with your attorney, he or she may
fire you as a client, causing you the expense and inconvenience
of starting over with another attorney.

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on Amazon.com by clicking here.

Will the children be exposed to details of the divorce?

While most parents try to shelter their children from the conflict, some parents use poor judgement. These misguided parents talk to the children about the details of the case or share court documents with them. If this behavior is brought to their attention, judges will usually enter restraining orders restricting either parent from revealing any details to the children. If your spouse is talking to the children about the case or talking negatively about you, speak with your attorney about your options. It might be a good idea to seek court-ordered counseling for the children to try to counter your spouse's negative behavior. 

Parents who share information with the children under the pretense, " I am not going to lie to my children," are fooling themselves, if not being outright dishonest. There is a difference between lying to the children and being discreet for the sake of their emotional welfare. White lies that protect the children are acceptable and good common sense.

Parents who use their children as confidants also hurt the children. Even though everyone needs a friend and confidante during a difficult period in his or her life, don't make your child that person. You don't help your children by placing them in that role. During a period when there is much upheaval for children, they need the guidance and protection of a parent who know when to say no. And it is much harder to say no to a friend. Don't give up your parenting responsibilities during this difficult time.

Even if your spouse has mistreated you, it is rare that the disclosure of the mistreatment will in any way benefit the children. The children need a relationship with both of you. They need the security of knowing that is is okay to love both of you. When you rage to the children about your spouse, this will inhibit the children from expressing their love for the other parent. Put your feelings aside for the best interest of your children. 

Will I continue to have health insurance through my spouse's work after the divorce?

Once the divorce is finalized, you are no longer considered a spouse. you are no longer eligible for health insurance coverage unless you pay for continued coverage.

Federal law requires your spouse's employer to offer insurance to you for a period of thirty-six months after the divorce. Commonly know as the COBRA law, this federal law ensures continued coverage, subject to your paying for the coverage. Investigate the cost of continuing on your spouse's employer-provided plan. Ordinarily, the cost for continued coverage is very high, and a private policy may be less expensive. And with Patient Protection and Affordable Care Act, passed in 2010, the advantages of COBRA coverage may become even less attractive.

If you are interested in accessing your rights to continued coverage under the COBRA law, you will need to make the election for coverage within sixty days from the entry of the divorce decree. More information concerning your rights under the COBRA laws is available at: www.dol.gov/ebsa/faqs/faq-consumer-cobra.html.

Begin early to investigate your options for your future health insurance. The cost of your health care is an important factor when pursuing maintenance and planning your post-divorce budget.

Excerpt taken from: Divorce in Illinois, The Legal Process, Your Rights, and What to Expect
Written by: Steven N. Peskind

Children and Parent Relationship in Divorce

While most parents try to shelter their children from the conflict, some parents use poor judgement. These misguided parents talk to the children about the details of the case or share court room documents with them. If this behavior is brought to their attention, judges will usually enter restraining orders restricting either parent from revealing any details to the children. If your spouse is talking to the children about the case or talking negatively about you, speak with your attorney about your options. It might be a good idea to seek court-ordered counseling for the children to try to encounter your spouse's negative behavior.

Parents who share information with the children under the pretense, "I am not going to lie to my children," are fooling themselves, if not being outright dishonest. There is a difference between lying to the children and being discreet for the sake of their emotional welfare. White lies that protect the children are acceptable and good common sense.

Parents who use their children as confidants also hurt the children. Even though everyone needs a friend and confidante during a difficult period in his or her life, don't make your child that person. You don't help your children by placing them in that role. During a period when there is much upheaval for children, they need the guidance and protection of a parent who knows when to say no. And is is much harder to say no to a friend. Don't give up your parenting responsibilities during this difficult time. 

Even if your spouse has mistreated you, it is rare that the disclosure of the mistreatment will in any way benefit the children. The children need a relationship with both of you. They need the security of knowing that it is okay to love both of you. When you rage to the children about your spouse, this will inhibit the children from expressing their love for the other parent. Put your feelings aside for the best interest of your children. 

Except from, "Divorce in Illinois, The Legal Process, Your Rights, and What to Expect" written by Steven N. Peskind.

If you are considering appealing a family law case.....

Appellate planning starts in the trial court.

All good trial lawyers are conscious of “preserving the record” in the event of an appeal. It is vital to have a court reporter at trial in order to do this. A court reporter’s job is to record the proceedings, including all of the witness testimony and the comments by the attorney’s and the judge. In the event an appeal becomes necessary, the court reporter prepares a transcript, which is given to the appellate court as part of the appeal. The appellate judges review the transcript as part of their consideration of the appeal. Without a transcript, it is much more difficult for the appellate judges to determine errors in the trial court. Since the person appealing needs to convince the appellate judges of an error in the trial court, the absence of a transcript can be fatal to the appeal.

Certain issues need to be raised in the trial court or they are waived on appeal. This means that if an issue is not raised at trial, one cannot raise the issue for the first time on appeal. For example, if the issue at the hearing only involved the question of the modification of maintenance, one cannot complain on appeal of a child support issue.

Also, trial court mistakes must be brought to the attention of the trial judge or they are waived on appeal. For example, if the judge considers improper evidence, and no objection is made at the time of the trial, the impropriety cannot be raised for the first time on appeal. It is vital that all errors be properly preserved in order to raise the issue in the appellate court.

Appeals are very time sensitive. One only has a limited amount of time after the entry of a final order to file the appeal. In the event an appeal is considered, action will need to be taken right away in order to meet the strict time requirements.

Appellate law is very complicated and success often depends upon good planning.

The Peskind Law Firm has substantial experience at both the trial and appellate court. Mr. Peskind is available to consult concerning appellate planning in the trial court and all other matters related to an appeal. If you are considering an appeal, Mr. Peskind will evaluate the appeal and explore opportunities for a successful result. Contact him at steven@peskindlaw.com or call the Peskind Law Firm at 630-444-0701.

What is an appeal?

At the conclusion of any family law trial, the trial judge court will make a ruling. If the ruling is considered a final ruling, either party may file an appeal. An appeal does not mean that you get to try your case over with a different judge; rather an appeal involves taking your case to an entirely different court, who will review the trial judge’s ruling. The appellate will determine if the trial judge made a mistake, and if so, it will reverse the ruling. If the appellate court does not believe an error was made, it will affirm the ruling. A ruling by the appellate court can then be reviewed by the Supreme Court, but only if the Supreme Court permits the matter to be reviewed.

The procedure for an appeal involves asking the clerk of the court to prepare the trial court record and then submitting a written argument to the appellate court outlining all of challenges to the ruling.  The trial court record includes: the court file with all pleadings and trial court orders, all of the exhibits submitted at the trial and the transcript of the testimony at the trial. The written argument, known as a “brief,” summarizes the facts of the case and presents legal arguments supporting a reversal of the trial judge.

Once the appeal is filed, the appellate court assigns the case to a panel of three appellate judges who will review the case and determine if the trial court acted properly and consistent with the law. Sometimes the appellate court will request “oral arguments.” If an oral argument is ordered, the attorneys appear at the appellate court and argue the case before the panel of judges.

Preparing an appeal is very involved. The procedures are complicated and the rules differ greatly from those rules in the trial court. An attorney who comfortably navigates daily in the trial court may not necessarily be the right person to handle your appeal. Advocacy in the appellate court is dramatically different than in the trial court, and requires different skills than are required to present a case to at trial judge.

The Peskind Law Firm has extensive experience handling appeals throughout the state. Steven N. Peskind has successfully appealed court decisions both in the appellate court and the State Supreme Court. Mr. Peskind and his team understand how to effectively present the case to the appellate court to maximize chances of success. Whether the case involves appealing a trial court ruling, or defending an appeal, the Peskind Law Firm can help. Contact Mr. Peskind at steven@peskindlaw.com or call the office at 630-444-0701.

Divorce vs. Legal Separation

Excerpt taken from Divorce in Illinois - The Legal Process, Your Rights, and What to Expect by Steven N. Peskind, Esq.

People with marital problems sometimes consider a legal separation rather than a divorce because a separation seems less permanent, less drastic. Some look at a legal separation as "divorce-lite." If you and your spouse want to just separate or take a "time out" from each other, work out an informal agreement regarding payment of bills and child-related matters, and then just separate without going to court. A legal separation is a formal court proceeding with the costs and expenses that go along with any court case.

If you do file a petition for legal separation, the judge will enter orders for maintenance, support, and custody. If you both agree, you can also divide your assets. 

Once the court enters a decree of legal separation, you are still married. You can file joint taxes as a married couple and may be eligible for health insurance and retirement benefits as any other spouse. If your spouse dies, you are considered a surviving spouse for the purposes of inheritance and probate laws. Any assets or debts that either of you acquire after the decree of legal separation remain your separate property or debt, in the event you later decide to divorce. 

Today people rarely use legal separations. The procedure is temporary and provides no real closure of the relationship. Since you are legally married, even if legally separated, you will need to get a divorce if you want to remarry or later decide to end the marriage with finality.

Most commonly today, people file legal separations to protect assets from creditors if one of the spouses needs long-term care. Sometimes people use this procedure if they anticipate a long-term separation and want to benefits from tax deductions for the payment of maintenance. A legal separation status of their marriage, but isn't ready to "pull the trigger" for the divorce. Separate and get a good counselor. Don't incur the unnecessary cost of the legal separation. If the marriage can't be salvaged through counseling, proceed with a divorce at that point.