Frequently Asked Questions When Working with a Lawyer
Does each spouse get 50% of the marital assets in a divorce?
Not necessarily. The judge will rule on the division of assets based on each spouse’s income, custodial support, and a variety of other factors. The court tries to determine an equitable–not necessarily an equal–division of assets.
Does joint custody mean 50/50 time with the children?
Rarely. Joint custody refers to the parties’ shared decision-making over the time spent with the children, not the actual percentage of time itself.
Why should prospective clients choose the Law Office of Brigid A. Duffield, P.C.?
Brigid’s philosophy is “Keep the Money in Your Family.” Though not always possible, we try to save families the cost by helping parties make decisions about your family between you and the other party, rather than leaving it to the legal system. Brigid’s staff are not only pleasant to work with, but provide excellent and attentive customer service.
How does the “six month waiting period” work for divorce?
Illinois requires a two year waiting period before a couple can get a no-fault divorce. The parties can waive this if they have lived separate and apart for a period of six months. Separate and apart can be the date when the spouses proclaim that they realized their differences were irreconcilable.
Is it helpful to be the first spouse to file for divorce?
There is no benefit to filing first.
Should I schedule a consultation for a divorce?
If you are asking that question, you should. Scheduling a consultation does not mean that divorce is imminent. Most divorce lawyers will first evaluate and suggest ways to reconcile when appropriate rather than push someone prematurely into a divorce. If you are not ready, or reconciliation is possible, having the general information you obtain in a consultation can expedite a reconciliation or give you what you need to move forward efficiently towards a divorce.
Can I get a free or reduced-rate consultation?
A lawyer’s stock-in-trade is time. Most family lawyers charge for the initial consultation. Often consultation fees are at a reduced rate from the lawyer’s normal hourly charge. This is not the time to be penny wise and dollar foolish. This is a long term and expensive relationship. Making a mistake at this time could mean changing counsel midstream and duplication of expenses.
What can I expect when I come for a consultation?
The consultation is your opportunity, usually brief (45-minutes to an hour), to interview and decide if that lawyer is the one for you. Until you retain a lawyer, there is no obligation on your part, or that of the lawyer, to do business together. An initial consultation is often the only opportunity a client has to ask questions about their concerns and how the lawyer will be handle them. It is often the time to get answers to the questions that are keeping you up at night, questions about possible outcomes for your specific matter and questions about how that lawyer might handle your situation.
What should I bring to the initial consultation?
The most important thing to bring to the initial consultation is your list of questions that are keeping you up at night. Writing out those questions about possible outcomes or other concerns you have will ensure you leave the lawyer’s office with what you need to make informed decisions. The lawyer will fill in the gaps. Many people arrive at a law office and, once there, forget why they came and the very things they are worried about. Only after leaving, do they realize they forgot to ask their most burning question. Because initial consultations are generally brief, it is not possible for the lawyer to review boxes of paperwork. If legal papers have been filed or preliminary agreements have been discussed, bringing these documents to the meeting is very helpful to the lawyer in making sure your questions get answered.
How much will it cost me to get a divorce?
It depends…on you, your spouse, your spouse’s lawyer and the judge. Family law cases and the outcomes by their nature are impossible to predict. Factors include the level of cooperation between the parties, how committed each of the parties are to preserving their assets, the level of cooperation between the lawyers and the complexity of the issues. Most lawyers set an initial retainer based on information the client provides on these issues. The client is required to replenish the retainer when it gets to a certain level. Often lawyers will withdraw from the matter when client owes money. Some matters which appear to be very simple become complicated and costly when one spouse is not emotionally ready to be divorced. Other very complex matters can be inexpensive when the parties have the same sense of fairness and equity and are ready to be done.
What can I do to facilitate negotiations with my spouse who does not want to separate or divorce?
There are many ways to resolve a dispute and begin negotiations with a reluctant spouse. Often these begin with a therapist or marriage counselor. Other popular methods include mediation and collaborative divorces. This is a great topic to discuss with the lawyer at your consultation to help decide your legal strategy.
The most important thing is to send your spouse or partner a clear message. Any mixed messages confuse partners and result in hurt feelings and expensive legal battles. Keep communicating – it may feel easier to pick up a phone, meet with a lawyer, and pay thousands of dollars than it is to speak with someone you are in conflict with, but that is the most expensive conflict resolution strategy.
How will I be charged?
After your initial consultation, an initial retainer is typically required upon commencement of our services. The amount of the initial retainer is determined based on our hourly rate and the predicted services that will be needed. The legal fees and costs that are incurred will then be credited against your initial retainer.
We cannot provide an estimate of your total costs because Family Law matters, by their very nature, have a way of becoming more complex and more time consuming than they first appear to you or us. The emotional dynamics between you and your spouse, the sense of cooperation between each two of you, as well as the level of cooperation between the attorneys, have a direct bearing on the amount of time and therefore the cost that will be spent on a case.
If the initial retainer has not been exhausted, the balance remaining will be refunded to you.
What is Collaborative Law?
Collaborative law gives spouses total control over what is happening. Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to “trouble shoot and problem solve” rather than to fight and win.
As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.
Each party in the Collaborative law process signs a contractual agreement which includes that each party agrees to honestly and openly disclose all documents and information relating the issues, to be respectful and avoid disparaging the other participants, to share and implement outside experts when necessary, and that neither party will seek or threaten court action. The primary goal of Collaborative law is to work together to find an amicable solution that creates a Awin-win@ situation for all parties.
How is Collaborative Law different than mediation?
In mediation, the parties completely control the direction of the negotiations and the outcome of the agreements. A mediator cannot give legal advice and must remain a neutral facilitator. If a mediated agreement is reached, the parties must still hire attorneys to draft the legal documents for presentation to the court. In a collaborative divorce, attorneys assist their clients in reaching a settlement of all legal issues while still looking after the best interest of their clients. The attorneys can and will offer legal advice and opinions to the parties during the negotiation process. Once, the agreement is negotiated, the attorneys can then prepare the legal documents and present them to the court, which a mediator can not.
Clients report the benefits of collaborative law to be:
- Non-adversarial, cooperative environment conducive to settlement
- Preserves the integrity of family relationships
- Team approach where the family is actively involved in the process
- Reduced costs
Overall, collaborative law is executed in a more cooperative environment in which to work out the underlying issues of your divorce or post decree issues and retain more control over the process and expenses.
What is the Divorce Process?
Typically the divorce process includes:
- Filing a Petition- One person files a Petition of Dissolution, a short two to three page document which sets forth the basic facts about you, your spouse and your children. By filing the Petition, a case number is assigned and the document becomes public record. Which party files the Petition is irrelevant to the courts.
- Service- Once the petition is filed, the process requires that the Respondent, the spouse who did not file, be served with the Petition. This can be done from spouse to spouse, your attorney can arrange to send the document to the other party, or in a contested matter, a sheriff can serve the petition.
- The Response- Once the other party has been served with the Petition of Dissolution, they have 30 days to file a Response. Typically at this point, the spouse retains their own counsel.
- Negotiation- The negotiation process involved the determination of the value of the marital estate or discovery. This procedure commonly includes depositions, interrogatories and review of financial documents. If the distribution is already agreed upon by the parties, the formal discovery process may be waived. Once the value of the estate is determined and a proposed agreement is reached, a Marital Settlement Agreement is drafted and presented to both parties for review. If the terms are agreed upon the document is signed and then presented in court.
If custody and visitation is an issue, a Joint Parenting Agreement will be proposed. If parties can not agree on issues related to custody and visitation, the Court may order them to mediation or evaluation.
- If the parties are unable to reach an agreement, the issues may be submitted in a pre-trail conference to a Judge. Both attorneys present their positions to the Judge and the Judge makes recommendations for settlement. A pretrial is often the best motivation for reaching a final settlement without preparing to go to full trial.
In the event an agreement cannot be reached, the matter is set for trial.
How can I preserve my estate and assets?
Most people spend too much money on a divorce. The family is always better served if the marital estate remains with one or both of the parties, ultimately the children, rather than paid out as legal fees. Separation and divorce are expensive. The family budget, at a time when it is already strained, takes on the added costs of legal fees, attorneys, second households and therapy. It may also require mediation fees and custody evaluation costs. Taking actions to carefully plan the added layers of cost will preserve the estate. Though not an easy task, being candid about divorce, having those difficult, critical conversations, not keeping things secret and/or hiding assets help to control the time and cost of a divorce.
Using conflict resolution techniques such as mediation or collaborative law will preserve relationships and may reduce the cost of the process. Learn what process will work best for your style and that of your spouse and family. Make sure your legal team and your legal strategy meet your objectives. Trust and use your lawyer. Well-intended friends and family members may give you advice, usually based upon someone=s horror story. While they may be trying to protect you, often the situations friends report are completely different from your unique fact pattern.
Can I file in DuPage if I live in a different county?
Who is Brigid’s ideal client?
Our ideal client pays our bill on time. They tell us what they can do and they do it. They tell us what they can’t do before I find out they can’t do something. They plan and schedule time to talk to us or meet with us when they need to. They ask the questions that they have. They provide the information we need when we request it in the way we can get to it quickly. (For example, it takes longer for us to review three years of bank statements that are still in the original envelopes than it takes to review the statements that are open and in chronological order. ) They assess the strengths and weaknesses of the their spouse correctly. When the divorce is over, both our client and their spouse refer their friends to us to handle their divorce.
Our ideal client has the ability to follow our suggestions on how to effectively communicate with their spouse so that we can help them get their best deal, save on legal fees and move the process more efficiently.
They hear the very hard information we have to tell them and get outside help when the reality of their situation is too much to bear emotionally, spiritually, physically, financially, mentally.