Nineteenth Judicial District Puts Peoples Jobs in Jeopardy and Impacts the Ability to Obtain Quality Legal Representation by Proposing Heartless Procedural Rules!

Today the Lake County Bar Association Family Law Committee met with the judges, and other court personnel, of the Nineteenth (19th) Judicial District in Waukegan, Illinois to discuss the Court’s proposals to implement new procedures to assist the Court in handling cases. These procedures would create what is known as a “case management” calendar whereby cases are “efficiently” handled by requiring attorneys, and their clients, to complete certain preparations for a family law trial by a set date. It is a one-size-fits-all proposal that basically tries to fit cases into three categories: simple cases; medium complex cases; and very complex cases. For example, simple cases are set to have mediation dates, child guardian ad litem appointments, and reports for children done within 90 days after the case management date. After these dates have been set, the Court proposes that all trials will be handled through a “trial call” whereby a family law case will be set for trial at some undetermined date on a given week. As a theory, there is nothing wrong with a case management system. It promotes judicially efficiency and economy. It also efficiently uses judicial resources.

However, family law is not the typical case for several reasons. Chief among them is that most of the time one party is not ready for a divorce, is reeling from the psychological impact the other party’s filing for divorce has had on her or him, and is trying to figure out how she or he should move on with their life. This is hard enough and these people are not thinking about how he or she should get a person appointed to give the court a report about his or her child in the next few months. As one attorney joked about the proposal, “What do you say when a client comes in and says to you: hey, my wife wants a divorce and I don’t know what to do?…You can now tell them that they don’t have to worry because we will distribute your property, give the kids to you or your wife, and have you divorced in 90 days!” Obviously, many attorneys in Lake County are quite upset by this proposal. In fact, the Lake County Bar Association’s Family Law Committee is so upset that they have requested the Court reconsider the rules as they currently are for several reasons (contact the LCBA Family Law Committee to learn more about their requests and posiiton. I do not represent this committee and all opinions contained herein are my own and my own alone). As discussed more below, it doesn’t sound like they are listening.

The worst part of the proposal though is not the dates for getting certain things done. Yes, it is very inconvenient and, yes, the current proposal is probably too strict. However, it is not outrageous that the Court would expect certain things to be done at certain times. The worst part of the proposal is the trial call dates. As discussed briefly above, the proposal would set the trial date several months in advance to occur on some unknown day on a given week. As a practical matter, this means that clients, and their attorneys, must make themselves available to go to trial at some unknown time on a given week. In other words, you will have to take a week off of work in case you go to trial. For those clients who have very real employment issues and can’t take a week off of work, this puts them in the difficult position of either getting fired or, alternatively, facing the wrath of the Court for missing their trial date. Additionally, if the Court gets too busy and the case doesn’t get heard, then they will need to be prepared to go to trial at some unknown date during another given week. This is not just theoretically going to create problems, it will guarantee that people will lose their jobs and/or face Court sanctions.

It also creates major issues for attorneys and allows the richer clients to abuse the system. As anyone who knows me is aware, this is something that I am staunchly opposed to both in principle and in practice. Imagine that you are an evil individual with money who wants to get a divorce and, at the same time, make sure your unemployed spouse has a hard time in the process. You can plan your divorce for years with a rich law firm that has the resources to assign to the various different parts of the deadlines and then, after you are prepared, file the petition. Your spouse, who can’t afford a large law firm, hires a solo practitioner, but only after waiting a few months because he or she is in shock over the whole situation. Within no time the Court has already received a report about who the child is best to be with and your spouse is flabbergasted at the speed of the litigation. Soon, your spouse, who had to take a minimum wage job to pay for his or her bills, finds herself or himself having to tell this new employer that he or she has to take a week off of work “just in case” the matter goes to trial. Then the day of trial happens and, because she or he has a solo practitioner attorney, is shocked to find out that the attorney was forced into being doubly booked on that same day by the Court’s rules and doesn’t have fifty minions like the spouse’s attorney to send to the trial. This leads to an emergency continuance by the Court because the judge doesn’t blame your spouse. However, now your spouse has to tell the boss that he or she needs another week because the attorney couldn’t go to the trial. The spouse is fired on the spot. Now he or she has lost her kids because she or he was unprepared, she or he lost the job because of the need to be available for a week, and is feeling very alone because the legal representation promised by the Illinois Rules of Professional Conduct is now only available if you are rich and can afford a big firm. Under the current proposal, I guarantee this hypothetical will occur and, unfortunately, probably in a situation where a wife is already a victim of physical abuse. Worse, this need to be available is true even if you are appearing without an attorney.

All too often justice is synonymous with money and too many procedural rules and laws create inappropriate barriers to the Court through passive aggressive actions against the less fortunate because making the Court accessible is too “inconvenient.” This is not justice, and the Court should not approve it’s misguided proposals.

The Court’s proposals also are impacting available representation. I myself will no longer be taking any cases with child custody issues until I know how this proposal plays out due to the potential major problems in getting all the reports done in the timeframe the Court wants it done is worked out.

Unfortunately, discussing the issues with the Court has not been very fruitful. Today, during a meeting with the Court and the LCBA Family Law Committee, one attorney stated that “these are real people with real jobs who can’t just take a week off of work because they might go to trial.” The response from the Court was “it’s (presumably referring to the current system that takes people’s very real life issues into account) is less convenient.” This is a shockingly heartless and uncaring attitude about people’s livelihood and, in my opinion, is unacceptable in today’s economy. The court is also, apparently, unwilling to meet in the middle by agreeing to have the case management system, but, as some attorneys have suggested, dropping the trial call date that would cost some clients their jobs. As the same task force member stated “you can’t have a track system (meaning the case management proposal) without a trial call.” Of course, this is not true, there is nothing that says you can’t get everything done and then, after getting ready, go to the judge and ask him or her to set your case for trial on a certain date at a certain time.

Additionally, several of the attorneys pointed out to one judge that it is not possible to know whether a case will be simple, medium, or complex by the very quick time that the Court is demanding clients, and their attorneys, appear for the “case management conference” to set the track dates. In response thereto, one judge simply stated that the attorneys did, in fact, “know” and, when the attorneys responded that they didn’t, he responded that they did know. In other words, the judge called the attorneys liars and was not listening.

I myself pointed out to the judge that solo practitioners and small firms, like my own, would be unable to provide the representation that people deserved because we simply couldn’t send a minion to cover the trial like a big firm. Unfortunately, the judge refused to address my concerns and made a comment implying that I might not have the experience needed to understand the situation by asking me the following question without giving me a real opportunity to answer: “Have you ever had a case that took over a year to go to trial?” The answer is yes judge I have.

Now, I ask the Court, are you really going to make people lose their jobs, limit their access to the Courts, and allow for the system to be abused by the more wealthy spouse because it’s “less convenient” for you to come up with a workable solution?

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you through your difficult family situation. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Explaining the Basis, Grounds and Ways to Get a Divorce in Illinois

Many clients have difficulties understanding what the requirements are in Illinois to dissolve their marriage. Unlike most states, Illinois allows for parties to ask for a dissolution (divorce) on the basis of “no-fault” and “fault.”
Illinois’ divorce law allows for no-fault divorces, as well as fault divorces on the grounds of impotency, bigamy, adultery, desertion for a period of one year, drunkenness, drug addiction, attempted murder of the other spouse, infected the other spouse with an STD, cruelty or a felony conviction. Illinois is in the minority of states that still has such laws. As you can imagine, filing for divorce on the basis that one party is at-fault for the divorce often creates unnecessary tension and fighting between the parties. It also encourages people to engage in morally questionable activities such as intentionally committing adultery in order to obtain a divorce (which you are advised not to do because one defense to this type of divorce is that you only did it to get the divorce).

Fortunately, due to the ability of parties to file a “no-fault” divorce, most married clients seeking a divorce no longer need to blame their husband or wife for the divorce. As in every other state in the country, Illinois’ divorce law also allows for individuals to get a divorce based solely on the fact the marriage has become untenable. This is known as a “no-fault” divorce. The only basis you need for a divorce under this ground is that the parties have been separate and apart for the statutory period, that “irreconcilable differences” have arisen, and that the marriage is “irretrievably broken.” As a practical matter, this means you can get a divorce on the basis that you just don’t want to be married anymore and that any attempts to reconcile have either failed or would be pointless.

However, due to politics, and the public policy in Illinois of protecting the sanctity of marriage, Illinois places restrictions on individuals seeking to utilize the no-fault ground in obtaining a divorce. In this regard, because Illinois is a “modified no-fault” divorce state, Illinois has a fairly draconian separation requirement for a no-fault divorce. Specifically, Illinois requires that the parties “have lived separate and apart for a continuous period in excess of 2 years.”

This draconian requirement is tempered in four important ways. First, it can be reduced to six months provided the parties agree to waive the full 2 year period. Second, the separation requirement is determined from the date of the trial or judgment and not from when the petition is filed. Many divorces will take years to become final and, as such, the separation requirement may be met during the course of litigation. Third, you should be aware that “separate and apart” does not mean that you have to be actually living in separate residences. Rather, so long as the parties have clearly not been living together as husband and wife, then the parties are living separate and apart, even if living in the same home. Fourth, the law allows for parties to try to reconcile and doesn’t count the following periods in determining the continuous period:

  • Any period of cohabitation during which the parties attempted in good faith to reconcile and participated in marriage counseling under the guidance of any of the following: a psychiatrist, a clinical psychologist, a clinical social worker, a marriage and family therapist, a person authorized to provide counseling in accordance with the prescriptions of any religious denomination, or a person regularly engaged in providing family or marriage counseling; and
  • Any period of cohabitation under written agreement of the parties to attempt to reconcile.

Of course, the situation still comes up where one spouse is completely against the divorce, there is no legal ground for a fault divorce, and the separation period has not yet begun. In this situation, clients should consider a legal separation. By filing a petition for legal separation, a party may obtain reasonable support, maintenance, and other benefits while they live separate and apart. These proceedings are virtually identical to divorce proceedings in most aspects. This lets a court decide many issues without actually dissolving the marriage. Very often, a legal separation Order wherein the Court determines the property rights of parties, and awards appropriate support and maintenance between the parties, will be recognized in the subsequent divorce proceeding.

Even though Illinois allows for a no-fault or fault divorce, parties with the option of both should utilize them! It is my opinion that parties are well-advised to file divorce on one of the fault grounds for divorce and, in the alternative, the no-fault ground for divorce. After the separation requirement has been met during the course of litigation, the parties can convert the case to a no-fault divorce and dismiss any of the fault grounds.

At Shunneson Law Office, we are dedicated to helping you through your difficult family situation. We strive to understand your particular issues and needs. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847-693-9120.

-Drake Shunneson (copyright 2012)

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.Photos courtesy of FreeDigitalPhotos.net.