Questions about Divorce
The most common questions a divorce attorney hears are, "How long is this going to take?" and "How much is this going to cost me?" If a client meets with an attorney after having discussed the matter with his or her spouse, and can present a complete agreement to the attorney, these questions can be answered rather easily.
First, how can I end this divorce?
There are two ways a divorce can be ended. One is by trial and the other is by agreement. If you and your spouse cannot reach an agreement, I recommend trying mediation or collaborative divorce to help you reach an agreement. If you choose a traditional, adversarial approach to divorce, a trial date will be set if you cannot reach an agreement. The courts are usually backed up for trial dates, and you may have to wait a considerable time for a trial. Trials are also tremendously expensive and emotionally traumatic. If you have a marital settlement agreement, getting a "prove-up" date (which is what the final court date is called when you have an agreement) does not usually take very long. When a case is ready to set for prove-up, it is not uncommon to get a prove-up date in a few weeks, while a trial date takes many months. The reason is because a prove-up usually only takes about ten minutes, while a trial can take days or weeks to complete.
What is an uncontested divorce with an agreement in place? We want to use one attorney You may have heard friends say that they used one attorney for their divorce. While it is very possible that the husand and the wife did not each have their own attorney, it is not possible for one attorney to represent both people in a divorce. It is not allowed. I frequently have a client that has reached an agreement with his or her spouse and asks me to prepare all of the documents necessary to end the divorce, requiring only a signature from the spouse. I can do this if there is an agreement on all issues, but I will not meet with the spouse who is not my client and I will not answer any legal questions from them. If the spouse that is not represented by me requests changes to the documents, for example, my client will need to express those change requests to me, not the unrepresented spouse. I do send a notice of the final court date to the unrepresented spouse and that spouse may certainly choose to attend the court date. How long will this take?
What is an uncontested divorce with an agreement in place?This is also sometimes referred to as the kitchen table divorce. You and your spouse sit down together, discuss all issues, and come to agreements about all issues. If you anticipate needing an order of protection because of domestic violence, a temporary support order because your spouse has or will cut off funds to you and/or your children, or a custody dispute, you do not fall under this category. You should also be familiar with your spouse's income, expenses, and assets and do not need your attorney to find out any of these things for you in order to participate in an uncontested divorce with an agreement in place. Reaching an agreement when your marriage is falling apart and your relationship is already strained can be a very difficult task that usually requires professional assistance. This kitchen table divorce method is best suited for couples that do not have children, do not own a house, and have not been married very long. I certainly have known couples who have been able to reach agreements in more complicated situations, but most couples do not know all of the issues that need to be addressed, do not know what the law is pertaining to all the issues, and quite simply are not prepared to undertake this task themselves.
We want to use one attorney
You may have heard friends say that they used one attorney for their divorce. While it is very possible that the husand and the wife did not each have their own attorney, it is not possible for one attorney to represent both people in a divorce. It is not allowed. I frequently have a client that has reached an agreement with his or her spouse and asks me to prepare all of the documents necessary to end the divorce, requiring only a signature from the spouse. I can do this if there is an agreement on all issues, but I will not meet with the spouse who is not my client and I will not answer any legal questions from them. If the spouse that is not represented by me requests changes to the documents, for example, my client will need to express those change requests to me, not the unrepresented spouse. I do send a notice of the final court date to the unrepresented spouse and that spouse may certainly choose to attend the court date.
How long will this take?
The length of time the attorney will need to prepare the documents and obtain a court date for an uncontested divorce with an agreement in place depends upon the attorney's schedule and the court schedule. Many documents need to be prepared and the attorney needs to be available for the court date. There is usually not much of a wait for a court date when the case has a signed marital settlement agreement.
The speed at which the attorney is able to obtain signatures and other documents will also be relevant. Naturally, if one of the spouses is out of state, time must be allowed for the documents to be mailed to that spouse, signed, and returned by mail. Signatures and other documents can usually be obtained very quickly if both spouses are local, neither spouse is a procrastinator, and the documents needed can be readily pulled out of the client's filing cabinet and produced to the attorney.
Another factor in the time element may be grounds. Mental cruelty and adultery, for example, have no waiting period. There is a waiting period for grounds of irreconcilable differences.
Some counties require divorcing couples with children to take a class about how the divorce can affect the children and how to minimize the damage. If the couple enrolls in this class immediately it can expedite the case.
If all goes well, documents are exchanged and signed rapidly, the waiting period does not apply or has been met, and the parenting class, if applicable, is attended, the uncontested case with an agreement in place can be completed in two months, possibly less.
How long would it take if I use the traditional, adversarial approach?
You may know neighbors or friends who have been going through the divorce process for years. The reason is usually because they have not reached an agreement. How long it takes depends on the couple and the method chosen for the divorce. On average a traditional case takes eighteen months to try to settle, conduct discovery, wait for a pre-trial date, wait for a trial conference date, and then finally go to trial.
How much does it cost for an uncontested case with an agreement?
Attorney fees for an uncontested case could run as low as $1,500.00. Court and court reporter costs are additional and are currently $417.00 in McHenry County. Costs in other counties are fairly comparable.
How much does it cost for a traditional, adversarial case?
How much will this cost if the case goes to trial? Many thousands of dollars. The final bill for attorney fees in an adversarial case will depend upon how many hours your attorney needs to spend on your case and the hourly rate your attorney charges. There may also be expenses such as witness fees, expert fees, and court reporter fees for depositions. The number of hours needed for a case depends heavily upon the degree of conflict between the parties. If it is necessary for your attorney to go into court many times, schedule depositions, draft letters and motions, and have many office visits and/or telephone conferences with you, the fees will naturally be much higher. I concentrate in uncontested divorces with an agreement, mediation, and collaborative law, but I would be happy to refer you to other attorneys for a traditional case, if you wish.
What if I want an amicable divorce but we can't reach an agreement ourselves?
Are there any other options? Yes. If you and your spouse agree to agree, but you do not already have an agreement regarding custody, a parenting plan, property division, and support, I strongly recommend Divorce Mediation and Collaborative Law. It is necessary for both of you to come to the table with a desire and willingness to work towards an amicable resolution. It is not necessary for you to have absolutely no conflict in your marriage, or to have agreements in place already, with either of these other two methods. In fact, part of my job is to help you get there from here.
Although the world is full of suffering, it is full also of the overcoming of it.