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geneva divorce lawyerIf you have been browsing divorce topics, you have likely seen countless articles urging you to consider divorce mediation or attorney-facilitated negotiation as a means of resolving your divorce out of court. Collaborative divorce is another common alternative resolution method during divorce. Collaborative divorce requires both parties to actively participate, and to do so in good faith. A mutual willingness to compromise is a necessity. Either spouse, unfortunately, has the power to delay or frustrate the process. If no agreement can be reached after substantial efforts have been made, you will be left with no option but to resort to divorce litigation. In some cases where it is abundantly clear that mediation or negotiations are likely to fail, it may be more prudent to make litigation your plan from the outset. An experienced attorney can assess your situation and help you decide whether yours is a divorce that cannot be settled out of court. 

Situations Suggesting That Collaborative Divorce or Mediation May Not Succeed

No matter how willing to compromise you are, mediation efforts will generally be futile if your spouse does not share your willingness. Circumstances that may suggest that mediation and  collaborative divorce may be insufficient include: 

  • Abuse - If your spouse has abused you or your children in any way at all, it suggests that they are not the type of person who can settle their disagreements in the rational manner demanded by collaborative divorce. Additionally, attempting to negotiate with them directly and outside a courtroom setting may provoke them or be emotionally distressing to you. It also opens the door for threats to be made to force the abused party to comply with the abuser’s demands. 
  • Severe mental illness - If your spouse has a severe mental illness like Borderline Personality Disorder or Bipolar Disorder, their illness may impact their ability to participate in negotiation or mediation in a productive manner. They may be more interested in placing blame on you than in reaching an agreement. 
  • Substance abuse - People who are almost always intoxicated are not known for their ability to keep their commitments. It can be difficult to get a person with a substance use disorder to show up for scheduled mediation sessions or to return communications promptly and use comprehensible language. 
  • Extreme conflict - While you certainly do not need to be amicable with your spouse to reap the benefits of collaborative divorce, you do need to be capable of communicating without fighting. If negotiating with your spouse would cause emotional distress and escalating conflict, it may be best to go to court. 

These are only a few examples of circumstances that may suggest that alternative resolution methods are not right for you. You should discuss your concerns with a qualified attorney. 

Posted on in Divorce

geneva famly law attorneyIn Illinois, if you want to get your marriage annulled, you can petition the court for a Declaration of Invalidity. Many people assume they can easily get their marriage annulled. However, it is more difficult to receive an annulment than a divorce, contrary to the commonly held belief that divorce is more difficult to achieve. 

A Declaration of Invalidity of Marraige deems a marriage invalid. Divorce ends a marriage. Annulment, on the other hand, states that a marriage was never valid to begin with. 

To get a marriage annulled in Illinois, there must be proof of impotence, bigamy, or proof that one party was unable to consent at the time of the marriage. This may be due to coercion, force, or the influence of alcohol or drugs. If an individual was underage at the time of marriage commencement, that is also proof of invalidity of marriage. Though these examples may seem simple enough to prove, it is often difficult to provide sufficient evidence. This is demonstrated in the court’s seldom practice of granting Declarations of Invalidity outside of the circumstance in which one spouse was under the age of consent. 

illinois legal separation lawyerIllinois offers two options for spouses who want to split up - divorce or legal separation. Legal separation allows the court to step in and help determine matters like allocation of parenting time and parental responsibilities, or even spousal support. Property division in legal separation can only be handled by a court if both spouses agree to the terms of property division. However, a legal separation does not end the marriage. Spouses who legally separate are still spouses. Divorce is final and allows the court to determine all issues related to the termination of your marriage. There are a number of reasons that spouses may want to separate without fully divorcing. A family law attorney can help you decide which option is better for you, your spouse, and your children. 

Reasons Spouses May Legally Separate Without Divorcing

Some reasons that you and your spouse may wish to get a legal separation instead of a divorce include: 

  • Benefits - Many spouses need to remain married in order to keep benefits like health insurance, pension funds, or social security. Divorcing may mean that one or both of you will lose out on important benefits. Legal separation allows you to live separately without terminating the benefits you rely on. 
  • Possibility of reconciliation - A legal separation is much easier to undo than a divorce. If you get divorced, you would have to remarry. Remarrying an ex-spouse after divorce can be complicated, as each of you now has significant separate property that you were awarded in the divorce. If you legally separate, it is easier to undo the separation, move back in together, and go back to living as a married couple. 
  • Taxes - Some spouses wish to avoid getting divorced so they can continue filing taxes jointly. 
  • Religion - If your religious beliefs or culture does not allow for divorce in normal circumstances, a legal separation may be a good option. It allows you to live independently from your spouse and divide parenting duties without getting divorced. 

Disadvantages of Legal Separation Over Divorce

There are of course, a few downsides of legal separation, such as: 

geneva divorce lawyerEven if you know that getting a prenuptial agreement is always a good idea, figuring out how to bring it up to the person you are about to marry can still be tricky. Talking about a prenuptial agreement may not be the most romantic discussion you have ever had, but it is extremely important for all couples who plan to marry. Contrary to popular belief, signing a prenuptial agreement does not mean that you are preparing for divorce. These contracts can do everything from requiring you both to name each other in your respective estate plans to establishing whose separate property is whose. Prenuptial agreements can be helpful in a variety of circumstances other than divorce. Of course, if you were to get divorced, having a prenuptial agreement can drastically simplify the process. 

3 Tips for Raising the Subject of a Prenuptial Agreement With Your Future Spouse

You might be afraid that if you bring up the idea of a prenuptial agreement, your fiance might think that you are not committed to the marriage. While some people will initially balk at the idea of making a prenup, almost all come around when they hear about the benefits these agreements can provide and why they are used. Some helpful tips for talking about getting a prenuptial agreement with your future spouse include: 

  • Framing the discussion - A lot of people think that couples who get prenuptial agreements are likely to divorce fairly soon. This is far from the truth. You can think of a prenuptial agreement as a contingency document - one that everyone should have - but most will not need. Anyone who has gone under anesthesia for even a simple and routine procedure like wisdom tooth extraction or a colonoscopy has probably been asked to sign a power of attorney or similar documents in advance. Of course, asking patients to complete these documents does not mean that your doctor thinks something is going to go wrong during the procedure. It is just smart to have a plan in place in case something unexpected does happen.
  • Benefits outside of divorce - If your marriage ends only when one of you passes away, your prenuptial agreement can still serve you well. These agreements often contain terms requiring both spouses to create a will or trust to which the other is a primary beneficiary. They can also work to establish separate property for each of you that can be kept safe from another spouse’s creditors. 
  • Illegal terms - There is a limit to the terms a prenuptial agreement can contain. These agreements may not be drastically unfair to one spouse, so neither you nor your fiance should fear that they will be left destitute should the marriage fail. Terms related to child custody are also not allowed. 

The reasons to get a prenuptial agreement far outweigh the reasons to avoid one. Aside from this, couples who can negotiate a prenuptial agreement show good communication and compromise skills, which may predict a successful marriage. 

Posted on in Divorce

b2ap3_thumbnail_shutterstock_488289283-1.jpg Divorces can run the gamut from relatively quick and easy when a couple is amicable to long, drawn-out, and contentious when they are not. If you are expecting the former, it can be tempting for you and your spouse to forego attorneys altogether and attempt to accomplish your divorce without help. Going through a divorce unrepresented can put you at a considerable disadvantage, whether you realize it or not. You may not be fully aware of the rights that you have, and a divorce can go from amicable to disastrous in the blink of an eye. Remember that you and your spouse are splitting for a good reason and strongly consider getting legal help from the start, even if you think you could go it alone. 

What Are Some Things that Could Go Wrong if I Get Divorced Without a Lawyer?

Getting your own legal counsel is extremely unlikely to make your divorce more difficult under any circumstances, but failing to do so could cause problems. Going into a divorce unrepresented is a risky option for reasons like: 

  • Amicability changes - It might seem like you and your spouse are still friendly despite the breakdown in your romantic relationship and will have no issue handling the divorce alone. However, this could change very quickly. You could discover that your spouse’s personality or demands change when they begin dating someone else, or you could experience much more conflict than you initially thought over certain issues. 
  • Secrets emerging - Can you say for certain that your spouse is not hiding any money or assets that you should be entitled to a share of? Probably not - it is more common than you might think. Finding out midway through a divorce that your spouse has a retirement account you did not know about can be a huge setback. An attorney will be able to locate secret assets during the discovery process. 
  • Sticking points - Most couples find that there is at least one issue they simply cannot agree on. Child custody concerns are a common sticking point. When you and your spouse reach an impasse, you may have little choice but to seek help from a lawyer. It is generally easier if the attorney has been representing you from the start as opposed to entering your case at a late stage. 

Divorce attorneys are often quite good at minimizing conflict if that is your goal. Hiring a lawyer is not likely to turn an amicable divorce into a contentious one, but the reverse could be true for some. 

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