With the first wave of same-sex couples seeking to divorce comes a new Illinois law, the Illinois Collaborative Process Act, effective Jan. 1, 2018, that aims to help them, as well as opposite sex couples, amicably resolve their issues in a fair and equitable way outside of the litigation process.
The law codified longstanding collaborative standards and practices around divorce, civil unions, paternity and adoptions. It allows all parties the ability to retain their privacy and levels the playing field. The proceedings take place at a series of conference room meetings, not through court hearings that then become a part of the public record. This puts divorcing couples in the driver's seat, not the judge or either parties lawyer( s ).
The fellows of the Collaborative Law Institute of Illinois ( CLII ) assist couples who choose the Collaborative approach as they navigate the end of their relationships. This institute is the only one of its kind in Illinois and consists of an interdisciplinary group of divorce professionals including attorneys, coaches, child specialists and certified financial professionals.
"Collaborative divorce is a unique process in that it uses a team-based approach to address the legal, emotional, financial and parenting pieces of a divorce," said licensed clinical social worker, Janus Behavioral Health Services Founder and CLII member Paulette Janus. "My role as a child specialist is to help parents navigate divorce in a manner that focuses on their children. Most of the parents with whom I work have good intentions and want to protect their children from the divorce yet are uncertain about the best strategies. I help them maintain positive parent-child relationships, transition into a co-parenting relationship and create a parenting schedule that meets their unique needs."
"The Collaborative Process is unique because it uses mental health professionals, working as Collaborative divorce coaches, to aid family members in the management of their emotions, the conflicts and the divorce process itself," said divorce coach Kate Van Dyke. "People rarely begin the divorce process with clarity because they are usually caught up in fear. A collaborative divorce coach has been specially trained to assist a client to manage their feelings and identify their needs and concerns so the client can focus on solutions rather than blame."
One of the features of a Collaborative divorce is a participation agreement that all parties sign in which spouses commit to staying out of court. If one or both parties renege on the agreement then the Collaborative Process ends. Every collaborative professional involved withdraws and the couple has to find other lawyers and start all over again in court. This ensures the communications remain confidential and incentivizes people to stay committed to the process.
Collaborative divorce attorney and CLII Marketing Committee co-chair Karen Covy explained that Collaborative divorce is a great option for gay and lesbian couples due to the privacy and control it offers them.
"Rather than leaving it in the hands of a judge, who does not know them and may have very different views about how their divorce should be resolved than they do, couples are able to chart their own destiny," said Covy. "By using Collaborative divorce, couples can limit the amount of information contained about them and their family in the public record. Working on Collaborative divorce cases has dramatically changed the way that I practice law. Instead of playing legal games that ultimately damage both spouses and their children, my collaborative-divorce practice focuses on helping couples end their marriage respectfully, and in a way that leaves both spouses and their kids poised to move forward constructively."
"There are some common themes in most every breakup," said divorce attorney, mediator and CLII President Rita Ghose. "People worry about costs, privacy, their own recovery and if they have kids, how deep the effects of the breakup will be on the kids' lives. We want our clients to come up with tailor made decisions about the future of their unique family, instead of applying the cookie cutter approaches the law provides us. All this should be appealing to every couple going through a breakup; whether they are gay, lesbian, straight or otherwise. By enacting this law, the legislature has acknowledged and recognized that the Collaborative Process is a benefit to families and that is significant."
"The passing of this law has helped our practice expand the public's general knowledge of Collaborative divorce and the benefits of a private, client driven choice when dissolving their marriage," said family law attorney, mediator, Collaborative Law Fellow, Greenwich Law Group, LLC Partner and CLII President-Elect Jessica Malmquist. "Rather than the stereotypical 'War of the Roses' style dissolution, I can offer our clients alternatives when available and practical. We also now have a set of legally enforceable standards which can be used to protect our client if problems arise with the other partner or attorney. This gives me the freedom to ensure my clients that if a problem does arises we have remedies and legally binding solutions, that the client has not been spinning their wheels or wasting their time during the Collaborative Process."
Beermann Law Partner and CLII Fellow Aubrey Parker told Windy City Times that she and her wife Ellen have two kids that they conceived using the same sperm donor with each of them carrying a child.
"For LGBTQ couples such as ourselves, there are so many unique questions to consider," said Parker. "When did marital property begin to accumulate? As of the date of our civil union? As of the date of our subsequent marriage? Or at some earlier date, when we would have been married if it had been legal? The answer is, it depends. There are arguments to be made ( and which have successfully been made ) under all of those scenarios and different dates. Another question: for our two beautiful children, who would have parenting rights and responsibilities? What would their futures look like? All of these are questions that we hope to never have to address ourselves, but for many LGBTQ couples who find themselves going through a divorce, these questions are very real, very difficult to answer ( both legally and emotionally ), and can be devastating if fought in a courtroom setting."
Parker said Collaborative Law has given her practice "another tool for her toolbox to help those with complex legal issues find unique solutions to their issues."
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