In this Q&A with Chicago Divorce Lawyer Michael Craven, we will explore questions people also ask about divorce in the Chicago area.
Table of Contents
Who can benefit most from an uncontested divorce?
Actually, every couple would benefit from an uncontested divorce. There is no legal definition for what an uncontested divorce is. Legally, the definition is whatever you want. In my practice, an uncontested divorce is one in which both parties have reached an agreement or are close to reaching an agreement.
The actual concept of uncontested means that you’re not going through the legal battle in court. Ultimately, you’ll have to go to court one time to finalize your case, but you’re not going to go to court for fighting over all the different things that people can fight over in a divorce case.
So if you have been able to reach an agreement between the two people who are getting divorced, you can enter into an uncontested divorce in my practice, if you have that situation. A big benefit is that I know how much time is going to go into the case and I can often quote people a flat fee. The vast majority of divorce cases are unpredictable and attorneys don’t know the amount of time that’s going to go into it from the outset. As a result, the fee is based upon an hourly charge. In almost all cases, if the fee is based upon an hourly charge, the total fee is going to be more than it would be in an uncontested case.
The other big benefit of uncontested divorce cases is that most of the time they can be done quickly. Typically, divorces can take a year or more. Sometimes less, but the average is about a year. If your case is uncontested, where you start off with a framework of an agreement, we can often be done with that divorce case in anywhere from four to 10 weeks. So the timeframe is much shorter.
Now, another big benefit of uncontested divorces is that the parties have less conflict and as a result, they can move forward with their lives, and if they have children, their families end up with a lot less hurt feelings and aggravation. It makes life a lot easier for both the people getting divorced as well as their families.
What are the advantages and disadvantages of a contested divorce?
A potential contested divorce is one in which the parties when they’re starting off, do not have an agreement. Now, the levels of conflict between them may vary. So some contested divorces may be a big long drawn out battle and others may simply be a process of trying to work out the various different terms plus obtaining the information and documentation necessary.
So, it often requires the gathering of a lot more information, it requires the analysis of that information in the documentation. It often requires a lot of negotiation and it may require a lot of court appearances depending upon what people are fighting over.
Those are the types of cases that will go on much longer than an uncontested divorce, for example. So where an uncontested divorce might be a few weeks to a couple of months, a contested divorce, could be a year, or sometimes many years, depending upon the issues and the people involved in it. In contested divorces, you often can end up at a trial. A trial is something where the judge is the one who is going to make the decision about the terms of your divorce.
Even in most contested divorces, the parties do reach an agreement so the judge doesn’t make the final decision. But the judge often has to weigh in along the way on all the different issues that come up, and in some of these cases, the judges will take the time to sit down with the divorce attorneys to discuss the case. The judge will make recommendations for settlement hoping that it never goes to trial.
Most divorce cases are what I would call contested. But that being said, most cases do settle. I would say that more than 90% of divorce cases, not just my practice, but, overall, end up settling. The real question is, when do you settle? It could be early on or it could be later, even the day before a trial. Depending on when/if the case settles, will determine how long your case goes on and how difficult it is.
Would you say overall that you wouldn’t want a judge to make decisions in the end?
So that’s a great question. Absolutely, it would be an extremely rare circumstance where it makes sense to get your case in front of the judge. A lot of people when they start off, they’re upset, they want their day in court and they think they are going to get justice and want to be heard. But in reality, it is not a good place to be. Judges will tell you that they don’t want to make the decision, they’re not as well equipped to make a decision. The judges would prefer that the two spouses reach an agreement on their own. So it is not a good place to be.
In fact, a lot of divorce attorneys have a saying that “a bad settlement is better than a good verdict”. Meaning, even the worst of deals is often better than what you’re going to receive from a judge. The judges have a limited set of tools in their tool chest, and they have to follow the law. The law is not very broad as far as being able to come up with unique resolutions and creative solutions.
So the judges have just the information that is in front of them. The rules for the trial are very narrow. Only certain pieces of information and certain documents get before a judge for the judge to see. And judges do not have the same flexibility that the two parties would have. So I would say that it would be extremely rare that you’re better off going to trial rather than coming to a settlement.
What can be done when you want a divorce, but can’t find your spouse?
That’s an interesting situation, and surprisingly, it does come up more than you would think. But it is interesting when you talk to somebody who says they haven’t seen their spouse for 20 years. There is a process so that you can get divorced, but there are limitations to the divorce, and I’ll talk about that in a second.
The process would be, first, you do have to make a diligent inquiry to see if you can find your spouse. A diligent inquiry would include following up with friends and relatives, calling places of employment, looking online, that sort of thing.
If you cannot find your spouse, then what you can do is start your divorce case and publish a notice in a newspaper, and all of us lawyers have access to legal newspapers that we publish these notices in and we will publish the notice. In Illinois, the notice is going to be published three times, once a week for three consecutive weeks. And after a certain period of time, following the third notice, if nobody answers the call, you’re allowed to go forward with your divorce.
A notice of the publication has to go to the last known address of the person even if you know that the person no longer lives there. The limitation, though, is important because the law presumes that the missing spouse is never going to hear about this divorce case. So the law limits what you can do. And what you can do is get a divorce.
So the law has authority over your case, your marriage, and it can dissolve your marriage. Dissolution of marriage is a legal name for a divorce. But it can’t order the spouse to do anything. So the judge is only going to reserve any questions, meaning they’re not going to address them.
But if you later locate the spouse, either one can bring the case back to court so that any outstanding issues can be addressed. For example, if they left you without any support, alimony, or child support, the judge can’t order them to provide that. In that example, that issue is not going to get addressed. So, yes, you can get divorced. But you’re going to be limited.
it is a difficult thing, as far as trying to move on with your life because you still have things hanging, but it still can be done. It absolutely can be done. And it’s not a long process. Those types of cases generally only take anywhere from about six to eight weeks.
How are people served divorce papers?
I like that question. And of course, we have to deal with that in every single case. A divorce case is a lawsuit so somebody needs to be legally served. What that means is, whenever somebody has filed a divorce case, it’s called a petition for dissolution of marriage, and something called a summons. Usually, the summons is actually handed to the other party.
There is something called “substitute” service, which is slightly different. If the person who is the subject of the divorce lives in a home with other people but is not home, you can serve the other people in the house. You can do this as long as the person you’re serving actually lives in that house, with a person getting divorced, and, and the person being served is over the age of 13.
So you need to physically get the petition and the summons. I will say though, that in most of the cases, I’m involved, and for sure, the vast majority, people do not get served, actually served. Most clients are not going to just ignore court papers. So in the vast majority of the cases that I’m involved in, whether I’m the attorney filing the divorce, or I’m the attorney on the other side, generally, I’m going to send a letter or email to the other side.
In the letter, I’ll write, “ I’ve been hired by your husband or your wife, and they are filing for divorce. Here’s a copy of the divorce papers, you should hire a lawyer and have the lawyer contact me within a week, 10 days, two weeks”, whatever we decide is the timeframe appropriate for that case. And in the vast majority of those cases, that person is going to contact a lawyer, and the lawyer is going to say, you don’t worry about service.
In fact, just even today, this morning, I was hired on a case and the person was served with divorce papers. And I just emailed the other lawyer about 30 minutes ago and told them I’m coming into the case. Of course, I know the other lawyer, and there’ll be no need to serve somebody. The same thing happened in a case I was hired on last week. So in most cases, there isn’t a service.
In some of the cases that I’m talking about, where we follow the procedure that I outlined, somebody isn’t responsive. In that case, we will have the person served. So it just depends, it’s just that most people don’t ignore it. And you don’t have to deal with serving somebody, because there is a cost to serving people. I think it often could be a bad start to a case, it sets the wrong tone.
People are often upset when they get served, especially if they weren’t expecting it, or especially if they’re somewhere where they feel like it’s an embarrassment, like at work. So, I think you can set a better tone if you give somebody the opportunity to be responsive. The purpose of serving them is to give them notice and to get them to file some basic court papers.
And if they do that, voluntarily, then you do not have to take the time to serve them, and serving somebody costs about $150. So if you could save them money, that’s a good thing to do.
Is it smart to accept being served divorce papers?
If you ignore the fact you’re being served with a divorce, or any kind of lawsuit, what’s going to eventually happen is you will get served. And if you don’t do anything, the court is going to find you in what they call “in default”, and they will treat you as if you do not exist. So the other side, they go forward with their case and they don’t have to give you notice any more of anything they do.
Ultimately, they’ll go in front of a judge and they’ll present their case. It’s like having an argument with somebody not being on the other side. You’re going to get a pretty favorable result because there’s nobody to challenge your argument or your narrative or whatever the case is or the facts are. So ignoring it is not a good idea. It’s a very bad idea.
Is it possible to keep a divorce private?
So another really great and interesting question. I’ll start from the premise that the law, and what happens in court and court filings, as a general rule is intended to be subject to public disclosure. These protections were put in place so that the court system doesn’t turn into something that it was like in the Middle Ages where legal action happened, and nobody got to see what happened. People were convicted of crimes without having a trial. So the openness of the court system is to protect the general public. Because of that, the rules only allow court actions to remain private in very, very rare circumstances.
I’ve been involved in some cases with, say, celebrities or sports figures, and sometimes you’re successful in getting the case to be private. Now, during the pandemic, the court is like a Zoom meeting, so you can’t just walk into a courtroom privately. In the past, you could walk into any courtroom, except for the juvenile courtrooms, which are private. You can’t just walk into a juvenile courtroom, where kids are being subject to prosecution or, or any action regarding that.
It’s very difficult to keep things private. However, none of the personal information regarding your case, like tax returns, retirement account statements, all of that, gets filed with the court. So that does remain private. And while not every judge allows this, most do. You can keep your settlement agreement as a general rule private. So the actual terms of your divorce do not need to be in public view.
There are a lot of ways that you can keep aspects of your case, private, but others you’re not going to be able to keep private, like the fact that there is a case. There are people that simply shift through the court filings every day to see what celebrity is filing for divorce, and now they’ll report on it. But, if you’re creative, you can keep a lot of it out of the news.
The courts are open and at the same time they are private, but there are some public documents. But, as I said, everything that happens in a divorce case actually gets filed with the court. So, in most of the worst cases, you have to submit a financial affidavit for example, but you don’t submit it to the court. You give it to the other side. In fact, you’re prohibited from filing those kinds of things. You must redact social security numbers and things like that. A person’s private information is not allowed to be disclosed in court filings anymore.
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