The Uncontested Divorce: Do I still need a lawyer?

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

Believe it or not, not every couple seeking to sever the bonds of their marriage also seek to sever the head from their spouse’s neck.  Often times divorcing parties participate in what is called an “uncontested divorce” or agreed divorce.  These types of proceedings are the most cost effective and efficient ways for couples to obtain a divorce. 

An uncontested (or “agreed”) divorce is when parties amicably agree to the terms of their divorce but simply need the expertise of an attorney to navigate through the legal system and to file the proper documentation to ensure that the terms of their agreement(s) are be legally binding. 

A case involving child custody requires a document called a “Parenting Agreement”.  This document  governs the terms and conditions of subjects such as parenting time, holiday visitation schedule, child support, health care, schooling, religious up-bringing and other issues related to the children.  The document that governs the division of marital property is called a “Marital Settlement Agreement”.  The Marital Settlement Agreement divides the parties’ marital assets and debts and further addresses such issues as maintenance (alimony) and retirement accounts.  Finally, the Judgment for Dissolution, is the court order executed by the judge, which finalizes the divorce and incorporates the terms of the agreements between the parties and makes them legally enforceable court documents. 

The attorneys at Hall & Rustom, LLC can ensure that all of the above documents include the proper terms to completely memorialize the terms of the parties’ agreement and finalize the divorce.  To send a message to our attorney concentrating in divorce, please visit www.centralillinoislawyers.com or contact Michael Fritz via email with your question.

Despite the seemingly simplistic nature of an uncontested divorce, complications can arise if done incorrectly.  Below are just some of the issues that our firm has faced concerning uncontested divorces with clients who did not have an attorney to assist in the proceedings:
 
a) He/she told me I could have the “car/savings/tv/etc.,” but it’s not in the court agreement.  Can I make them give me what they promised?

I am often surprised by the number of people who come to me after the divorce papers have been executed in an attempt to enforce a promise or agreement they had with their former spouse which was not memorialized in the written Marital Settlement Agreement.  Property may be left out of the documents if the parties feel as though the property, whether it be antique furniture or television set, is miniscule to include in the written divorce paperwork.  In other instances an issue may arise between the parties during the physical division of the marital property but after the judge has signed off on the court order.  In most cases, if the stipulation is not included in the written divorce documentation then “it didn’t happen.”  The reason the attorneys and the courts spend time drafting these agreements and fighting over the language included in them is because of the lasting and binding effect they have on the parties.  Courts are often unwilling to determine the understanding of an oral (or parole) agreement beyond the scope of the written documentation.  Although the attorneys at Hall and Rustom have facilitated many uncontested divorces at the requests of our clients, we ensure that the opposing party (spouse) is fully aware that our firm does not represent his/her legal interests in the matter.  

b) We both hired the same attorney to represent us.  Should I just share the same attorney with him/her?

It is a violation of ethical rules for an attorney in Illinois to represent two parties who have direct, competing legal interests - also known as a conflict of interest.  Many clients mistakenly believe that the attorney hired by their soon-to-be ex-spouse to draft the marital dissolution documents is also “their attorney”.  Although this attorney may have been retained by your spouse to draft documents that you and your spouse have purportedly come up with together, this attorney is still obligated to look after his/her client’s best interest; therefore, the attorney is obligated to make sure that the client who hired him/her (your soon to be ex-spouse) is the party who is fully informed and protected.  They are also legally obligated NOT to give the opposing party (the other spouse) legal advice regarding the divorce.  This is why it is highly advisable to hire your own attorney to protect your interests in even an uncontested divorce.  At the very least, the attorney can review and advise you of the legal documentation already drafted in your divorce.  The cost effectiveness and efficiency of the uncontested divorce are still maintained, but you walk away with the assurance that your legal interests are protected. 

c) We just agreed that he/she won’t have to pay child support.  If I want child support later, I can always get them to pay later, right?

Illinois law provides that child support is a vested right of your children, not the parents.  Therefore, despite what the parents may believe, they cannot use child support as a bargaining chip to negotiate the terms of their divorce.  Illinois mandates certain amounts of child support percentages depending upon how many children are born to the marriage.  This amount may be altered if the JUDGE, not the parents, find a justifiable reason to DEVIATE from the standard guidelines.  If the parties choose to ignore this fact, and further choose to unjustifiably lessen a child support obligation of a given parent, the court may void the enforceability of the divorce documentation.  Further, there are time restraints as to how long a party to a child support battle will have to wait to modify a final judgment/agreement by the court.  In most jurisdictions, if you want to change a final order by a judge in Illinois, the parties must wait two (2) years before filing the petition to modify support/custody/etc. unless compelling evidence is present to convince a judge. The attorneys at Hall & Rustom work with our clients to ensure that any deviation decided upon by the parties will likely meet the scrutiny of the court prior to the execution of the divorce papers.

It commonly is assumed to simply "go it alone" on, what appears to be, simple family matters.  You should always consult an attorney to determine what appropriate measures can be taken to protect your best interests.  At Hall & Rustom, LLC, we strive to think five moves ahead to protect not only your present interests, but your future interests.  To schedule a free consultation, email attorney Michael Fritz or call (309) 699-4691 to set an appointment. 
 
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


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