Family Law & Practice MCLE Meeting DuPage Judicial Center ... · DCBA Events: 6/20/19 – 11th Hour...

Family Law & Practice

MCLE Meeting

DuPage Judicial Center - ARC

June 18, 2019

11:45 AM – 12:00 PM Welcome/Introductions

Zach Martel – Family Law Section Chair

A few words from Ken Norkus of Compass Mortgage – Today’s

Lunch Sponsor

Case Law Updates – Presented by Leah Setzen – Grunyk Family Law

12:00 PM – 1:00 PM Program

The Collaborative Process Act: Ethical Standards for This New

Practice Area

Theresa Beran Kulat, Trinity Family Law

See attached for bio.

Presentation Summary

In July of 2018, the Illinois Collaborative Process Act codified the

client-based dispute resolution process that has been practiced

around the country since the late 1990s and in Illinois since 2002.

Theresa will explain the standards for conducting a collaborative

divorce now that there is a statute and Supreme Court Rules.

Next Meeting: September 2019

DCBA Events: 6/20/19 – 11th Hour PRMCLE Seminar – Granite City, Naperville

6/20/19 – Happy Hour – Granite City, Naperville

8/22/19 – DCBA Golf Outing – Cantigny, Wheaton

Earn CLE Online!

DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal

Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a new

IICLE®Share collaboration to provide DCBA members a high quality and reliable online

learning experience. Members can find the link to The Illinois Institute for Continuing Legal

Education (IICLE) on the DCBA website under “Legal Community”OnDemand CLE Online

CLE Catalog

View & Print All CLE Certificates through the DCBA Website:

Manage Profile -> Professional Development (under content & features) and choose the icon to

the left of each meeting to print your certificate directly or choose to have them emailed to you

to save to your computer (you MUST be logged in to view this feature)

Theresa Beran Kulat settles cases. Working as a mediator, a collaborative lawyer and a

neutral case facilitator, she is passionate about helping families heal. She currently

serves on the Illinois State Bar Association Family Law Section Council. A Fellow of the

Collaborative Law Institute of Illinois, she has held many leadership positions including

President in 2016 and 2017. Theresa belongs to the International Academy of

Collaborative Professionals and the DuPage County Bar Association.

Therese received her B.A. in Economics from John Carroll University and her J.D. from

the University of Illinois at Urbana-Champaign in 1992. Previous employers include

the Federal Reserve Bank of Chicago, Proctor & Gamble, Ottosen Britz and Ancel Glink.

Her writing credits include: “Holistic Divorce: An Opportunity for Transformation”

published in Stress-Free Divorce and the Collaborative Process Act Chapter in Gitlin on

Divorce. She provides training and public speaking through her other company,

Trinity Collaboration, Inc.

Divorces and separations are sometimescomplicated, and we can help give somefinancial peace of mind during and after theprocess. My team and I have helped manypeople with financing and mortgageconsultation as it relates to divorce andseparation. As you advise your clients during the divorceand/or separation process, have themcontact us about their mortgage to bestprepare for a smooth transition. Each situation is unique, so starting the process early is imperative to prepare for every possibility. The most common questions usually center around a refinance to remove one person from the mortgage, an equity buy out, or a new home purchase.

• 20 years in the mortgage industry

• Experts in mortgage refinance and home purchasing

• Many successfully closed transaction with separated or divorcing couples

• Free pre-divorce mortgage consultation

KEN NORKUSSENIOR LOAN OFFICERCell: 630.742.7077Direct: [email protected]/kennorkus

27755 Diehl Road, Suite 100 | Warrenville, IL 60555Illinois Residential Mortgage Licensee NMLS# 21808 - Illinois: MB.0005795; Ken Norkus: NMLS# 294227

This is for informational purposes only for the distribution to business entities. This material should not be distributed to consumers.

DUPAGE COUNTY BAR ASSOCIATION FAMILY LAW COMMITTEE

JUNE 18, 2019

Prepared by: Danya A. Grunyk, Esq.

Hilary A. Sefton, Esq. Leah D. Setzen, Esq.

Victoria C. Kelly, Esq. Danielle L. Muckley, Esq.

* Unpublished/Rule 23(e)(1) decision. ** Not released for publication in the permanent law reports. Until released, subject to revision or withdrawal.

FAMILY LAW COMMITTEE MEETING June 18, 2019

Table of Contents

Page ALLOCATION OF PARENTING TIME AND DECISION MAKING In re Marriage of Taylor, 2019 WL 2219784 (Ill.App. 3 Dist.), May 22, 2019*…………………..…1 ATTORNEYS’ FEES In re Marriage of Swanson, 2019 WL 2041889 (Ill.App. 2 Dist.), May 7, 2019*…………………...1 See also MAINTENANCE, In re Marriage of Davis, 2019 WL 1953740 (Ill.App. 3 Dist.), April 30, 2019*…………………………………………………………………………………………….5 BREACH OF CONTRACT Schmidt v. Gaynor, 2019 WL 2222994 (Ill.App. 2 Dist.), May 22, 2019**………………………….2 CHILD SUPPORT See also MAINTENANCE, In re Marriage of Ruettiger, 2019 WL 2094167 (Ill.App.3 Dist.), May 13, 2019*………………………………………………………………………….6 CONTEMPT In re Marriage of Marshall, 2019 WL 2242064 (Ill.App. 2d Dist.), May 21, 2019*…………………2 DISCOVERY SANCTIONS In re Marriage of Moss, 2019 WL 2000030 (Ill.App. 1 Dist.), May 3, 2019*……………………..…3 EDUCATION In re Marriage of Mundschenk, 2019 WL 2193338 (Ill. App. 2d Dist.), May 20, 2019*…………...4 JURISDICTION ON APPEAL In re Marriage of Morgan, 2019 WL 2281573 (Ill.App. 3 Dist.), May 29, 2019**………………..…4 MAINTENANCE In re Marriage of Crawford, 2019 WL 2257110 (Ill.App.1 Dist.), May 24, 2019*……..…………....5 In re Marriage of Davis, 2019 WL 1953740 (Ill.App. 3 Dist.), April 30, 2019*……………………...5

* Unpublished/Rule 23(e)(1) decision. ** Not released for publication in the permanent law reports. Until released, subject to revision or withdrawal.

Page

In re Marriage of Ruettiger, 2019 WL 2094167 (Ill.App.3 Dist.), May 13, 2019*………………..…6 In re Marriage of Sather, 2019 WL 2156886 (Ill.App.2d Dist.), May 15, 2019*…………………….7 SOCIAL SECURITY DISABILITY INCOME In re Marriage of Benyon, 2019 WL 2004355 (Ill. App 3d Dist.), May 7, 2019**…………………..7

1 * Unpublished/Rule 23(e)(1) decision. ** Not released for publication in the permanent law reports. Until released, subject to revision or withdrawal.

ALLOCATION OF PARENTING TIME AND DECISION MAKING In re Marriage of Taylor, 2019 WL 2219784 (Ill.App. 3 Dist.), May 22, 2019* The parties had three children and Mother filed a petition for dissolution of marriage. A trial was held on the contested issues: parenting time and decision-making authority with respect to the children’s religious activities. Several family members and a preschool teacher testified regarding both issues at trial. Mother proposed a parenting plan that gave Father every other weekend visitation, ending prior to church on Sunday morning, and asked for sole decision-making in the area of religion. Father sought 50/50 parenting time on a week-on, week-off schedule and joint decision-making with respect to religion. The trial court found that both parents exercised the same religion and attended the same church. As there was no conflict, the trial court found it was in the children’s best interests to award joint decision-making responsibility for religion. As for parenting time, the court determined that a 50/50 rotating schedule was not in the children’s best interests and awarded a more traditional “visitational” schedule. Mother appealed, arguing against Father’s 43% of parenting time award and the joint decision making on religion. On appeal, the court first considered parenting time under 602.7. The court found that the trial court’s written order made specific findings with respect to the relevant factors, including parent caretaking in the 24 months prior to the filing of the petition and the consideration of the children’s needs. The court noted that there was “ample” testimony that both parents were involved in caretaking to a certain extent. As such, the court found that the trial court considered the statutory factors and fashioned a schedule that was in the best interests of the children. The court next considered section 602.5 regarding the award of decision-making for religion. The court found that the allocation of joint decision-making authority with respect to religion was not against the manifest weight of the evidence. ATTORNEYS’ FEES In re Marriage of Swanson, 2019 WL 2041889 (Ill.App. 2 Dist.), May 7, 2019* The parties were married in 2009 and had no children. Following a trial in 2018, the trial court entered a judgment for dissolution of marriage. The trial court found that Wife was unemployed, the recipient of Social Security disability payments and “likely not employable.” Husband was found to be employed as a police officer with many more years of working ahead of him. There was minimal property to divide; however, Husband was solely awarded an approximately $22,000 retirement account. Husband was ordered to pay Wife maintenance. The issue of contribution to attorneys’ fees was reserved. Husband appealed, challenging his maintenance obligation. Wife filed a petition seeking contribution under 503(j). Wife then filed a second petition pursuant to section 508(a)(3) seeking contribution in connection with the appeal. The trial court held a hearing on both of Wife’s petition and found the most relevant consideration to be the parties’ respective incomes and property. Accordingly, the trial court ordered Husband to pay 80% of Wife’s outstanding trial fees and 90% of Wife’s appellate fees. Husband filed a motion to reconsider, which was denied. Husband appealed, alleging that the trial court erroneously determined that Wife lacked sufficient means to pay her fees while he had a corresponding ability to contribute toward those fees.


On appeal, the court noted that section 503(j)(2) states that if maintenance has been awarded, the section 504 criteria for an award of maintenance applies to the determination of any award for contribution. Specifically, the court stated that the Act directs courts to consider all of the circumstances presented by the given case before deciding whether to order contribution and in what amount. Here, the trial court was entitled to consider the totality of the circumstances. As such, the trial court’s decision was affirmed. See also MAINTENANCE, In re Marriage of Davis, 2019 WL 1953740 (Ill.App. 3 Dist.), April 30, 2019* BREACH OF CONTRACT Schmidt v. Gaynor, 2019 WL 2222994 (Ill.App. 2 Dist.), May 22, 2019** Plaintiff filed a breach of contract complaint against two sets of attorneys, alleging the Defendants overbilled Plaintiff for legal services provided in her divorce case, which remained pending at the time of filing in the trial court. Defendants had filed fee petitions pursuant to section 508 in the divorce case, where the trial court had reserved ruling on the reasonableness and necessity of the fees pending the resolution of the breach of contract proceedings. Defendants filed a joint section 2-619(a)(3) motion to dismiss based on the fact that the same parties have the same cause pending in the divorce case. The trial court granted the motion and dismissed Plaintiff’s complaint with prejudice. Plaintiff appealed, arguing the trial court improperly dismissed her complaint as duplicative. On appeal, the court noted that the crucial inquiries are first, whether the same parties are involved and second, whether the two actions arise out of the same transaction or occurrence, not whether the legal theory, issues, burden of proof or relief sought materially differ between the two actions. The court found Plaintiff’s breach of contract claim was duplicative of the fee petition in the divorce action and affirmed the trial court. CHILD SUPPORT See also MAINTENANCE, In re Marriage of Ruettiger, 2019 WL 2094167 (Ill.App.3 Dist.), May 13, 2019* CONTEMPT In re Marriage of Marshall, 2019 WL 2242064 (Ill.App. 2d Dist.), May 21, 2019* The parties were divorced in May of 2018. One month after the entry of judgment, Mother filed a petition to modify the allocation judgment requesting that the son be permitted to attend a private high school in California. Father filed a motion to strike and dismiss, which was granted by the court. Father than filed a petition for a finding of indirect civil contempt alleging that Mother intentionally created and fostered a dispute between Father and child when she filed her petition asking for the child to attend private school. He alleged that during various parenting time, the child would not come with him. The rule was issued, and Mother later filed a motion to strike and dismiss, alleging that Father offered no set of facts which showed that she interfered with Father’s


parenting time. A temporary parenting schedule was later entered, in which Father was to have parenting time on November 7, 16 through 18 and 20, 2018. On November 30, 2018, Father filed an emergency second petition for contempt and abuse of parenting time pursuant to section 607.5. He alleged that on November 17, he dropped the child off at home so that the child could get books and clothes and that when he went to pick up the child, the child refused to return with him. He also alleged that on November 20, 2018, when he sent a group text to Mother and child reminding them about the parenting time, the Mother sent back the following response: “??”. Mother filed a motion to strike and dismiss and the court granted same. However, the court order noted that the court “specifically did not rule on the section 607.5 claim for abuse of parenting time.” Father appealed, and the court affirmed the decision of the lower court. The court found that Father’s allegations did not allege a single fact evidencing Mother’s alleged willful failure to comply with the court ordered parenting time. The court found that the allegations were vague, unsupported and conclusory statements that the Mother did not encourage or facilitate parenting time. DISCOVERY SANCTIONS In re Marriage of Moss, 2019 WL 2000030 (Ill.App. 1 Dist.), May 3, 2019* The parties were married and had two children. In 2016, Wife filed a petition for dissolution of marriage. In August 2016, Wife served Husband with a Supreme Court Rule 214 notice to produce. In September 2016, Husband filed his objections to same. In January 2017, Wife’s counsel sent a 201(k) letter regarding same and then filed a motion to compel in February 2017. Husband was granted 21 days to respond to the motion to compel, but in that time, Husband’s counsel withdrew. Thereafter, Husband continued to fail to respond to outstanding discovery requests. In September 2017, the trial court entered an order holding Husband in indirect civil contempt related to failing to respond to discovery requests, with a purge of providing complete discovery compliance within 21 days. On October 2017, the trial court entered an order barring Husband from testifying regarding all financial matters at trial as a Supreme Court Rule 219 sanction for failure to comply with discovery rules. In January 2018, the trial court issued an order containing its finding and judgment for dissolution. Husband filed a motion to reconsider, which was denied. Husband appealed. On appeal, the court noted that Husband repeatedly ignored the trial court’s orders requiring him to comply with Wife’s discovery requests. The court first determined that that trial court had authority to impose a sanction on Husband for his failure to comply with discovery orders, and next addressed whether the trial court imposed the appropriate sanction. The court reviewed the factors under Rule 219 and found that the majority of the factors heavily weighted in favor of Wife. As such, the court affirmed the trial court’s decision to prohibit Husband from testifying regarding financial issues at trial.


EDUCATION In re Marriage of Mundschenk, 2019 WL 2193338 (Ill. App. 2d Dist.), May 20, 2019* Mother filed a petition for contribution to college expenses. The marital settlement agreement provided that the parties respective obligations would be pursuant to 750 ILCS 3-5/513 of the Illinois Marriage and Dissolution of Marriage Act, or by any similar or comparable provision in force at the time in question. The agreement also provided that the parties should jointly make the decision for which college the child would attend. The evidence presented was that Mother did not inform Father of the child’s college until after the child decided to attend the school. During the hearing, the court found that at the time of the judgment, Father was earning $58,000 and paying $14,000 per year in child support. Now, Father was earning $75,000 and was not paying child support (because the child emancipated). Therefore, the court ordered Father to pay $6,300 per year towards the child’s college. On appeal, the court affirmed the decision of the lower court. The court found that Mother’s noncompliance with the marital settlement agreement’s provision on joint college decision-making did not preclude the court from ordering Father’s support for the child. There is no indication that consulting about college was a condition precedent to order a party to pay for college. JURISDICTION ON APPEAL In re Marriage of Morgan, 2019 WL 2281573 (Ill.App. 3 Dist.), May 29, 2019** A judgment for dissolution of marriage was entered in 2015. In 2018, a hearing was held before Judge Garcia regarding numerous pending motions, including a motion for in-camera interview of a minor child and motion for modification of allocation judgment. The trial court ordered the parties to mediation during the hearing. Father filed a motion to substitute Judge Garcia for cause and Judge Dow heard arguments on the motion. Father argued that statements made by Judge Garcia constituted actual prejudice. Judge Dow found no actual prejudice and stated in open court that Father could have “308(a) language” in the order showing his right to appeal. The written order denying the motion stated, “this ruling is appealable pursuant to Supreme Court Rule 304 and other applicable rules.” Father appealed. On appeal, the court first considered whether the court had jurisdiction. The court noted that jurisdiction is limited to review of appeals from final judgments unless otherwise permitted under Illinois Supreme Court Rules or by statute. Father contended the court had jurisdiction pursuant to 304(a) and that Judge Dow stated in open court that her order was appealed pursuant to 304(a). The court noted that Judge Dow did not include the language “there is no just reason for delaying enforcement or appeal or both” in the order, nor was it clear she intended to invoke Rule 304(a) from the record. Instead, she stated on the record that the ruling was appealable pursuant to Rule 308(a) not 304(a), and the language of the written order was not an express written finding in accordance with 304(a). The court further stated that simply mentioning appealability while vaguely referencing Rule 304 “and other applicable rules” does not confer appellate jurisdiction. The court further stated that the denial of a motion for substitution of judge for cause is an interlocutory order, is not final for purposes of appeal, and cannot be converted into a final order


by the mere inclusion of 304(a) language. As such, the court dismissed the appeal for lack of jurisdiction. MAINTENANCE In re Marriage of Crawford, 2019 WL 2257110 (Ill.App.1 Dist.), May 24, 2019* In April 2015, the parties entered into a marital settlement agreement that established Husband’s unallocated support obligation at $8,042 per month based on his earnings of $250,000 per year. The unallocated support was to continue indefinitely but was reviewable after seven years. In November 2015, Wife filed a petition for rule to show cause for Husband’s failure to pay school and extracurricular expenses. Shortly thereafter, Husband filed a petition to modify unallocated support, alleging that he was now unemployed. As Husband had stopped paying the court-ordered support amount, Wife filed another petition for rule to show cause with regards to the unallocated support. During the hearing, the court heard testimony that Husband took various golf trips, and the court found that he was not a credible witness, nor was he taking enough steps to find a job. The court denied the petition to modify unallocated support and held Husband in contempt of court. On appeal, the court found that the trial court abused its discretion when it denied the petition to modify unallocated support. The court found that the evidence showed unequivocally that the reduction in Husband’s salary was substantial and involuntary. There was no evidence presented that the termination of employment was voluntary. While the court found Husband to be an incredible witness as to his job search and conduct after the termination, there was no evidentiary support for the conclusion that Husband’s dramatic reduction in income was not a substantial change in circumstances. The substantial change resulted from Husband losing his $250,000 per year job. On appeal, the court also noted that the trial court found Husband was not credible in his testimony about his job search and his post-termination spending. The court noted that this was relevant to the issues of imputing income or weighing his earning capacity. However, the trial court explicitly stated that it did not analyze the statutory factors because it found that there was no substantial change in circumstances. Therefore, this case was remanded back to the circuit court to proceed to the second step of analyzing the petition to modify by reviewing it in light of the applicable statutory factors. Finally, the court vacated the contempt finding as it was based on the trial court’s ultimate ruling on the petition to modify unallocated support. Until the trial court resolves the petition to modify, it remains unclear whether Husband will ultimately owe any arrears. And if there are no arrears, there will be no contempt. In re Marriage of Davis, 2019 WL 1953740 (Ill.App. 3 Dist.), April 30, 2019* The parties were married in 2004 and executed a post-nuptial agreement (“PNA”) in 2012, which provided, in pertinent part, that Husband was to pay maintenance to Wife in the amount of $4,000 per month until Wife found employment in her chosen field or for a maximum of 36 months, whichever was less. The parties’ PNA further provided that Husband was to pay 40% of Wife’s attorneys’ fees or 100% of same if Wife was still in school. In 2013, Husband filed for dissolution of marriage and in 2015, Wife filed a petition for temporary relief. The trial court ordered the


Husband to begin paying Wife the $4,000 per month in temporary maintenance. Wife subsequently filed a motion for interim attorneys’ fees, which was denied. Wife later filed a renewed motion for interim attorneys fees’, which was granted and Husband was ordered to pay $5,000 in attorneys’ fees to Wife’s attorney Watson (Wife was represented throughout the litigation by three different attorneys). The trial court later conducted a hearing on all unresolved issues, after which it found that Husband’s 36-month maintenance obligation began when the trial court entered its temporary maintenance order. The trial court specifically found that Husband’s prior contributions toward the joint marital account did not constitute maintenance. The trial court further determined that Husband owed approximately $19,000 in attorneys’ fees toward Wife’s various counsels other than attorney Watson but was silent as to Husband’s prior $5,000 interim payment to attorney Watson. The trial court also denied additional fees payable by Husband to attorney Watson as Watson was subpoenaed to testify regarding said fees but filed a motion to quash due to inadequate notice. Husband appealed, challenging the start of the maintenance payments and requesting credit for the $5,000 payment toward interim fees. Wife cross-appealed, challenging the denial of contribution toward attorney Watson’s fees. On appeal, the court found that Husband’s actions prior to the award of temporary maintenance were representative of maintaining the marital status quo and were not maintenance under the parties’ PNA. As such, the trial court appropriately found that the maintenance obligation began on the date when temporary support was awarded. Next, the court found that the only question regarding the award of attorneys’ fees was whether the Husband owed 40% or 100%, depending on whether the Wife was in school. Accordingly, the court remanded the issue to the trial court to provide sufficient notice to attorney Watson and conduct a hearing on fees. Similarly, the court remanded for the challenge of the $5,000 credit for interim fees paid and stated that the trial court should first determine which of attorney Watson’s fees were reasonable and owed by Husband, then assess whether a $5,000 credit is owed to Husband. In re Marriage of Ruettiger, 2019 WL 2094167 (Ill.App.3 Dist.), May 13, 2019* The parties were divorced in May of 2014. At that time, Husband was ordered to pay 32% of his net income for child support. The issue of maintenance was reserved. Thereafter, Wife filed a motion for maintenance and Husband was ordered to pay $1,200 per month. In December of 2016, Husband filed a motion to reduce child support and a motion to reduce or suspend maintenance. While the motion was pending, Wife filed a motion to continue and extend maintenance. During the hearing, Husband testified that he was a union pipefitter and he was currently unemployed. He testified that there were always periods of unemployment, but that this was the longest he had gone without work. The trial court ordered Husband to pay child support in accordance with the statute based on his average income in 2016 and 2017. The trial court ordered that maintenance be based on Husband’s average monthly income for 2016 and 2017. The appellate court found that there was not a showing of a substantial change in circumstances and affirmed the decision of the lower court. The trial court took the average of Husband’s income from the prior two years to determine his support obligation. The court found that the evidence established that Husband was a union pipefitter and period of work interspersed with periods of unemployment were not unusual.


In re Marriage of Sather, 2019 WL 2156886 (Ill.App.2d Dist.), May 15, 2019* After a long-term marriage, the parties were divorced in 2012. The trial court awarded Wife maintenance in the amount of $2,500 per month. This was a 45-year marriage. In 2014, by agreement of the parties, the maintenance was modified to $1,100 per month. Pursuant to the petition filed by Husband, he had been an accountant and maintained a brokerage business. He was now partially retired from the accounting practice and had sold the brokerage business. In June of 2017, Husband filed a petition to modify maintenance. He alleged that maintenance should be terminated because he had fully retired from the accounting practice. Despite his retirement, he filed a financial affidavit indicating that his total income was $3,917 per month. The income was more than the $2,663 he had listed as monthly income when he requested a modification in 2013/2014. At the time of the trial, he had $920,857 in total assets, and Wife had $1.445 million in assets. The trial court denied the motion, finding that this was a permanent award of maintenance and that he still had the ability to pay $1,100 per month as his monthly income had increased since the last modification. Further, the court found that his retirement was not a substantial change in circumstances because the retirement was contemplated in 2014 when the parties entered the agreed order. The appellate court affirmed the decision of the lower court. Husband did not show a substantial change in circumstances from the last modification. Even at the time of the divorce, during the proceedings, Husband argued that his earnings had decreased because he was trying to retire. At the time the judgment was entered, the court considered that Husband would be retiring, and still awarded permanent maintenance. Further, the court did not modify the length of the maintenance in 2014 when Husband represented that he was partially retired. His retirement was specifically contemplated when the agreed order was drafted in 2014. Further, Husband had the continued ability to pay the maintenance amount as his monthly income was higher than it was in 2014. SOCIAL SECURITY DISABILITY INCOME In re Marriage of Benyon, 2019 WL 2004355 (Ill. App 3d Dist.), May 7, 2019** At the time of the hearing on child support, Father was receiving Social Security Disability Income (SSDI) dependent benefits based on his disability. After considering the party’s parenting time, earnings, maintenance paid by Mother and health insurance premiums paid by Mother, the court ordered that it was not appropriate to order either party to pay child support. The court ordered that the SSDI dependent benefit be placed in a joint account to be used for the child’s “excess expenses,” including childcare, tuition and other educational expenses, medical and extracurricular expenses. Any unused portion was to be saved for the child for future needs, and if there was a deficit, it was to be equally split by the parties. The appellate court reversed the decision of the trial court. The court found that there is no authority that allows a trial court to order that the SSDI dependent benefit be put into an account for future needs. The appellate court ordered that Father is to use the SSDI dependent benefit for the current support of the child.

6/17/2019

1

Ethical Standards for this New Practice AreaTheresa Beran Kulat

Theresa Beran KulatB.A., Cum Laude, John Carroll University

• Federal Reserve Bank – Research Assistant

• Proctor & Gamble – Sales

J.D., Cum Laude, University of Illinois College of Law, Champaign

• Local government lawyer – 10 years

Full-time mom – 1995 and beyond

• Divorced in 2002 using the Collaborative Process

• Collaborative training – 2002

Solo Non-adversarial Divorce Practice – 2003 to present

6/17/2019

2

• Honor the litigation process for what it is.

• Strengthen the commitment of people who are Fellows of the Collaborative Law Institute of Illinois.

• Clarify the benefits of taking collaborative training.

• For people who are trained, share the benefits of joining CLII.

My Intentions

Learning Objectives

• Understand the ethical standards for calling a case “collaborative” now that there is a statute.

• Learn the essential elements of a collaborative process participation agreement and the lawyer's professional role.

• Discover the differences between conducting a case with a participation agreement and without.

• Obtain resources to become a collaborative process lawyer and offer collaborative process services within the rules of professional conduct.

6/17/2019

3

"Collaborative process matter" means a dispute, transaction, claim, problem,

or issue for resolution, including a dispute, claim, or issue in a proceeding, which

is described in a collaborative process participation agreement and arises

under the family or domestic relations law of this State, including:

(A) marriage, divorce, dissolution, annulment, legal separation, and property distribution;

(B) significant decision making and parenting time of children;

(C) maintenance and child support;

(D) adoption;

(E) parentage; and

(F) premarital, marital, and post-marital agreements.

750 ILCS 90/5(5), Pub. Act 100-125 (eff. Jan. 1, 2018).

General Definition

"Collaborative process" means a procedure intended to resolve a collaborative process matter without intervention by a court in which persons:

(A) sign a collaborative process participation agreement; and

(B) are represented by collaborative process lawyers.

750 ILCS 90/5(3), Pub. Act 100-125 (eff. Jan. 1, 2018).

What is “Collaborative Process”?

6/17/2019

4

A collaborative process participation agreement must:

(1) be in a record;

(2) be signed by the parties;

(3) state the parties' intention to resolve a collaborative process matter through a

collaborative process under this Act;

(4) state the parties' agreement to discharge their collaborative process lawyers and law

firms if the collaborative process fails.

(5) describe the nature and scope of the matter;

(6) identify the collaborative process lawyer who represents each party in the process; and

(7) contain a statement by each collaborative process lawyer confirming the lawyer's representation of a party in the collaborative process.

750 ILCS 90/15, Pub. Act 100-125 (eff. Jan. 1, 2018).

What is a Collaborative Participation Agreement?

"Collaborative process lawyer means a lawyer who represents a party in a

collaborative process and helps carry out the process of the [participation] agreement, but is not a party to the [participation] agreement.”

750 ILCS 90/15, Pub. Act 100-125 (eff. Jan. 1, 2018).

Because a collaborative process is a PROCEDURE to resolve the matter

WITHOUT INTERVENTION BY THE COURT, the lawyer has a limited scope

engagement. The engagement is limited to settling the case.

What is a “Collaborative Process Lawyer”?

6/17/2019

5

Illinois Supreme Court Rule 294

A collaborative process lawyer… may appear in court:

“(1) to comply with the procedural rules of the tribunal as necessary

to facilitate the collaborative process;

(2) to seek approval of an agreement resulting from the collaborative

process; or

(3) to seek or defend a petition for an emergency order to protect the

health, safety, welfare, or interest of a party.”

Article 1: Beginning & Concluding the Process

Article 2: How it Works

Article 3: The Collaborative Professionals

Article 4: Experts

Article 5: Professional Fees & Costs

Article 6: Confidentiality and Privilege

Article 7: Discharge and Disqualifications of Professionals

Article 8: Withdrawal of Professionals for Violations

Article 9: Cautions

From the Standard Participation Agreement developed by the Collaborative Law Institute of Illinois

Structure of the Participation Agreement

6/17/2019

6

ARTICLE 7

DISCHARGE AND DISQUALIFICATION OF PROFESSIONALS

7.1 We each agree to discharge our respective Collaborative

Process lawyers and law firms if the Collaborative Process fails,

terminates, or concludes by only partial resolution. We understand

that striking this provision results in the Matter no longer being a

Collaborative Process Matter under the Act.

Key Portions of the Participation Agreement

Signature Page for Clients and Confirmation of Representation by Attorneys

6/17/2019

7

The Collaborative Conflict Resolution Spectrum and the Shadow of the Law

Source: Pauline H. Tesler

Before Collaborative Came on the Scene


6/17/2019

8

Participation Agreement with Disqualification Clause creates Boundary


Immediately next to the right of the line, settlement is reached “in the shadow of the law.”


6/17/2019

9

The Participation Agreement defines the scope of representation

and creates the boundaries.

To the left of the line: To the right of the line:

A case is on file No case is on file*

Court calendar Pace of the parties

Attorney plays both roles Attorney can focus on settlement

Code of Civil Procedure

Discovery = formal

Section 40 of the Act: “A party shall

make timely, full, candid and informal

disclosure of information…”

Outcome based on attorneys’ and

judge’s determination of merits

Outcome based on the clients’ needs

and interests

*If timing of Petition is relevant, can file and immediately get a stay of proceedings.

6/17/2019

10

(a) …a collaborative process lawyer…is disqualified from appearing before a tribunal to

represent any party in a proceeding relating to the collaborative process matter in which

the lawyer serves or served as a collaborative process lawyer. Further, a lawyer serving or

who has served as a collaborative process lawyer must withdraw from the representation if

the collaborative process fails.

(b) A disqualification prescribed by paragraph (a) is imputed to all lawyers in a law firm with

which the lawyer disqualified by paragraph (a) is associated and may not be waived; nor may

the disqualification of any lawyer be removed by screening.

Ill. S. Ct. R. 294 (eff. July 1, 2018).

Supreme Court Rule 294

Note: If the process “fails”, the clients are just

back where they would have been without CP.

Information and documents that are “otherwise

discoverable” stay with the file.


6/17/2019

11

Some clients want “a little bit” of customization.


Some clients want full, interdisciplinary teams


6/17/2019

12

International Academy of Collaborative Professionals www.CollaborativePractice.com

Collaborative Law Institute of Illinois www.CollabLawIL.com

Collaborative Practice Professionals of Illinois www.CPPIllinois.com

Trinity Family Law www.TrinityFamilyLaw.com

Resources

Thank you for your time and attention.

Feel free to contact me with questions.

Theresa Beran KulatCollaborative Lawyer & Mediator

Phone: (630) [email protected]

Based on Standard Participation Agreement of Collaborative Law Institute of Illinois July 2018

Page 1 of 12

COLLABORATIVE PROCESS PARTICIPATION AGREEMENT

By this Agreement dated ___________________we, John Doe and Jane Doe, the parties

hereto, affirm our intention to resolve our family law or domestic relations matters, specifically,

the dissolution of their marriage (herein, the “Matter”) using the Collaborative Process described

herein as well as in the Illinois Collaborative Process Act (750 ILCS 90/1 et seq.) (herein, the

“Act”) and any applicable court rules (herein, the “Collaborative Process” or “Process”) rather

than using other dispute resolution processes described to us by our Collaborative Process

lawyers.

We acknowledge that before beginning the Collaborative Process our Collaborative

Process lawyers informed us of the advantages/benefits and disadvantages/risks of participating

in the Collaborative Process and have further informed us about reasonably available alternatives

to the Process, including mediation, arbitration, the litigation model of dispute resolution, or

other dispute resolution processes. We freely and voluntarily consent and commit ourselves to

the Collaborative Process as described in this Agreement.

BASIC GOALS

Accordingly, in the belief that the Collaborative Process is in each of our best interests as

a means for resolving the Matter, we affirm as our basic goals:

To reach settlement in the most amicable way possible and to settle our issues in a

private and non-adversarial manner that avoids the negative economic, social, and

emotional consequences of protracted and acrimonious litigation.

To resolve our issues without litigation and without seeking a court-imposed

resolution, relying instead on an atmosphere of honesty, transparency, cooperation,

integrity, and professionalism geared toward the present and future wellbeing of our

family, while considering all reasonable options to maximize opportunities for

settlement.

ARTICLE 1

BEGINNING & CONCLUDING THE PROCESS

1.1 Beginning: We agree that our participation in the Collaborative Process begins

when we both sign this Collaborative Process Participation Agreement.

1.2 Concluding: We agree that the Collaborative Process will conclude upon

(a) resolution of the Matter as evidenced by a record signed by both of us; (b) resolution of a part

of the Matter, evidenced by a record signed by both of us, in which we agree that the remaining

parts of the Matter will not be resolved in the Process; or (c) termination of the Process.

1.3 Terminating: We agree that the Collaborative Process will terminate when

either of us: (a) gives written notice to the other that the Process is ended; (b) begins a court

of 12

proceeding related to the Matter without the agreement of the other; (c) in a pending proceeding

related to the Matter, initiates a pleading, motion, order to show cause, or request for a

conference with the court, or requests that the proceeding be put on the court’s active calendar,

or takes similar action requiring notice to be sent to the parties; (d) except as otherwise provided

in Section 1.4, discharges their Collaborative Process lawyer. We further agree that, except as

otherwise provided in Section 1.4, the Process will also terminate when a Collaborative Process

lawyer withdraws from further representation of a party or when the Process no longer meets the

Act’s definition of a Collaborative Process matter. We acknowledge that either of us may

terminate a Collaborative Process with or without cause. A Collaborative Process does not

conclude if, with our written consent, either or both of us requests a court to approve a resolution

of the Collaborative Process Matter or any part thereof as evidenced by a signed record.

1.4 Successor Collaborative Process Lawyers: We agree that the Collaborative

Process will continue if, not later than 30 days after the date the Collaborative Process lawyer

gives notice to all other parties of that lawyer’s discharge or withdrawal, (a) the unrepresented

party engages a successor Collaborative Process lawyer for representation in the Process; (b) we

agree in writing to continue the Process, reaffirm and amend this Agreement to identify the

successor Collaborative Process lawyer; and (c) the successor Collaborative Process lawyer

confirms in writing his or her representation of the unrepresented party in the Process.

ARTICLE 2

HOW IT WORKS

2.1 No Court: We understand that the Collaborative Process does not seek or rely on

court-imposed solutions. We commit ourselves to settling all matters out of court (except as

provided in Section 7.3) with the assistance of our Collaborative Process lawyers and other

Collaborative professionals as needed (herein, the “Collaborative Team”; see Section 3.2).

2.2 Meetings: We agree to engage in informal group meetings and discussions

among the Collaborative Team to reach an out-of-court settlement of all issues relating to the

Matter.

a. We understand that communications during our meetings and discussions will

focus on negotiation and settlement of all such issues, including those impacting

our property, finances, children, and our respective futures.

b. We understand that the costs of meetings are substantial and require the

cooperation of all participants to make the best possible use of available

resources. Thus, we commit to being fully prepared for each meeting.

c. Our commitment to group meetings does not preclude one of us from meeting

separately with our own Collaborative Process lawyer or other members of the

Collaborative Team. Likewise, we are free to discuss any issue with each other

outside of the group meetings if we both agree and are comfortable doing so.

Either of us may insist that a discussion item be reserved for Collaborative Team

meetings when Collaborative Team members are present.

of 12

2.3 Good Faith Negotiations: We agree to maintain a high standard of integrity and

to participate in good faith throughout the Process. We agree not to take advantage of each other

if miscalculations or inadvertent mistakes occur, and instead we agree to identify and correct

such miscalculation or inadvertent mistakes. In our Collaborative Team meetings we may

discuss the parameters of Illinois law and the possible outcome of a litigated result. We agree,

however, that neither of us will threaten litigation as a way of forcing settlement or gaining an

advantage.

2.4 Interest-Based and Balanced Negotiations: We agree to negotiate based on

needs and interests and not based on positions. We acknowledge that a “position” is something a

person has decided upon, whereas “needs and interests” are what cause the person to decide.

Interests are the desires and concerns that motivate people. We understand that Collaborative

Process lawyers and other members of the Collaborative Team will help us identify and

articulate our individual and family needs and interests. We understand that we will be expected

to take a balanced approach to resolving all differences. Where our interests differ, we each

agree to use our best efforts to propose solutions acceptable to both of us and to work for the best

outcome for all involved, including our children (if applicable).

2.5 Full Disclosure: We acknowledge that the Collaborative Process is based on

transparency. Voluntary, informal disclosure of information related to a matter is a defining

characteristic of the Collaborative Process. We therefore agree that during the Collaborative

Process we each will make timely, full, candid, and informal disclosure of all information related

to the Matter without formal discovery. We will also promptly update information that has

materially changed after a previous disclosure.

2.6 No Formal Discovery: We acknowledge that during this Process we will not use

formal investigative procedures and methods that are available in litigation commonly known as

“discovery,” such as subpoenas, interrogatories, requests for production of documents,

depositions, and the like. Instead, we agree to use and rely on each other’s voluntary

commitment to make full disclosure as described in Section 2.5. We believe that we can rely on

each other to make a full and fair disclosure of all information necessary for a fair settlement. We

agree that any settlement we reach will be based on the assumption that we each will have acted

in good faith and have provided complete and accurate information to the best of our ability. We

understand that failure to act in good faith and to make full disclosure may result in termination

of the Collaborative Process.

2.7 Children (if applicable): In resolving issues about sharing the enjoyment of and

responsibility for our children, we agree to make every effort, with the full support of the

Collaborative Team, to reach prompt and amicable solutions that promote our children’s best

interests.

2.8 Status Quo: We agree that during the Collaborative Process, neither of us will

unilaterally (a) transfer, encumber, conceal, or otherwise dispose of any property except in the

usual course of business or for the necessities of life; (b) relocate the children; or (c) otherwise

change the status quo without first consulting each other and with the Collaborative Team so that

we have ample opportunity to discuss and reach agreement on the issue.

of 12

2.9 Court Approval of Agreements: We understand that no agreement reached

between us during the Collaborative Process will be enforceable by a court unless the agreement

is in writing, signed by us both, and approved by the court.

ARTICLE 3

THE COLLABORATIVE PROFESSIONALS

3.1 Collaborative Process Lawyers: We acknowledge, and our Collaborative

Process lawyers have confirmed, that they are independent of each other. Each Collaborative

Process lawyer represents only one of us in this Collaborative Process and neither represents the

other. We understand that although both Collaborative Process lawyers share a commitment to

the Collaborative Practice model of dispute resolution and to the Collaborative Process as

described in the Act, each has professional duties to and a confidential relationship with his or

her own client.

3.2 Collaborative Team: We understand that Collaborative Practice is an

interdisciplinary model of dispute resolution, involving not only lawyers trained in the

Collaborative Process, but also collaboratively trained mental health professionals and financial

specialists. These professionals are collectively known as the “Collaborative Team.” We

understand that we, in consultation with our Collaborative Process lawyers, decide which

professionals to involve in our Matter. Below is a general description of the role of each

Collaborative professional:

a. Collaborative Process Lawyer: A Collaborative Process lawyer represents a

party in the Collaborative Process and helps carry out the Collaborative Process.

The Collaborative Process lawyer works within the Collaborative Process to

educate, advise, counsel, and otherwise assist a client in working effectively with

the other participants, including members of the Collaborative Team. A

Collaborative Process lawyer will also draft agreements and go to court to request

court approval of agreements.

b. Financial Specialist: A financial specialist serving as a neutral participant assists

parties with budgets, cash flow, property division, tax issues, valuations,

understanding financial instruments, and other financial matters.

c. Coach: A coach assists parties in preparing for joint meetings, managing

emotions, improving communication, developing co-parenting skills, and

managing tasks.

d. Child Specialist: A child specialist can meet with the children to understand

their needs, provide a voice for the child(ren), give feedback to parents about their

children’s needs, and work with parents to create a parenting plan.

e. Mediator: A mediator has specialized skills in dispute resolution that can be

helpful to the parties in discussing and reaching a settlement.

of 12

3.3 Neutral Roles: We acknowledge and understand that a Collaborative

professional serving in a neutral role is expected to adhere to that role, and therefore we will not

ask any neutral professional to engage in any relationship with either or both of us that would

compromise that professional’s neutrality. Except as otherwise provided in Section 3.4, we

acknowledge that a professional neutral’s working with either or both of us, or with our children,

outside of the Collaborative Process is inconsistent with a neutral role.

3.4 Professional Services Outside the Collaborative Process: After the Process

concludes, we will not ask any Collaborative professional on our Team to provide any service for

either or both of us that is either (i) related to the Matter or (ii) adverse to either of us, except for

a subsequent Collaborative Process matter or as otherwise permitted herein. More particularly,

we ask the Collaborative professionals to adhere to the following:

a. Financial Specialists: A financial specialist may not have any other business or

professional relationship with a party during the Process or after the Process

concludes, and will not sell or recommend the purchase of financial products or

other services to a client. A financial specialist may, however, assist a party or the

parties after the Process concludes in completing tasks specifically assigned to the

financial specialist by the parties’ settlement agreement or in other matters with

the written consent of the parties and the professional.

b. Child Specialists and Coaches: A child specialist or coach may assist the parties

after the Process concludes, but (i) such assistance may not include functioning as

a therapist for a child or a party or parties; and (ii) a child specialist or a neutral

coach may assist the child or a party or the parties after the Process concludes

only with the written consent of the parties and the professional. A mental health

professional who has served as a therapist for a child or a party or parties may not

serve in the role of child specialist or coach in the Process.

c. Collaborative Process Lawyers: After the Process concludes, a Collaborative

Process lawyer may assist the client in completing tasks specifically assigned to

the lawyer by the parties’ settlement agreement or provide services unrelated to

the Matter.

d. All Collaborative Professionals: After the Process concludes, the Collaborative

professional (i) may consult with a client about reinstating or resuming the

Process or other dispute resolution options that may be available, and (ii) may

provide the professional’s client(s) with referrals.

ARTICLE 4

EXPERTS

4.1 If experts are needed, we will ordinarily retain them jointly as neutrals. Examples

of experts retained for the Process include real estate appraisers, business evaluators, and

professional financial advisors.

of 12

4.2 While neither of us and neither Collaborative Process lawyer is precluded from

consulting privately with separate experts or consultants, we will direct each such expert or

consultant to follow the spirit and direction of this Agreement, and, when appropriate, to

collaborate with each other, meet and confer, and, if possible, render joint statements on the

issues in question. We further agree not to retain separate experts or consultants during the

Process without advising our respective Collaborative Process lawyer of our intent to do so.

4.3 We understand that any expert or consultant who participates in the Process will

be advised of the provisions of this Agreement and will be required to sign and deliver to each

Collaborative Process lawyer a copy of this Agreement acknowledging that he or she has read

this Agreement and agrees to be bound by it.

4.4 We agree to direct all such experts and consultants participating in the Process to

assist us in resolving our differences without litigation. Any report, recommendation, or

documents prepared by, or any oral communication from, any such expert during the Process

will be shared with us and with the Collaborative Team, and will be subject to the provisions on

confidentiality and privilege in Sections 6.1 through 6.3.

ARTICLE 5

PROFESSIONAL FEES & COSTS

5.1 We agree that members of the Collaborative Team, experts, and other

professionals whom we engage in the Process are entitled to be paid for their services on an

ongoing basis. We understand that not paying an outstanding balance due any of the

professionals may jeopardize our access to advice and information, and we therefore agree to

stay current on all accounts and to make funds available for this purpose. We also agree to

discuss the issue of professional fees and costs throughout the Process so that we may manage

those fees mindfully.

5.2 We understand that Collaborative Team members will have no financial

connections between or among each other such as fee-sharing or referral fee arrangements.

5.3 We understand that payment of final professional fees and costs will also be part

of the final settlement agreement.

ARTICLE 6

CONFIDENTIALITY AND PRIVILEGE

6.1 We are entering into the Collaborative Process to effectuate a full and final “out-

of-court” resolution of all issues between us or that impact our family. To protect the

confidentiality of all communications throughout the Process, so that we feel free to voice our

concerns and express our “needs and interests,” and so that all other participants in the Process

will feel free to express their viewpoints without concern as to the use of those communications

in litigation, we agree as follows:

of 12

a. We agree to treat as privileged communications all communications during the

Collaborative Process by, between, or among ourselves, our Collaborative Process

lawyers, other Collaborative Team members, experts, and other nonparty

participants in the Collaborative Process, including any person who attends a

Process meeting (herein, a “Collaborative Process Communication”), subject to

the remaining provisions of this Article 6.

b. Unless we agree in writing to waive any of the provisions of this Section 6.1 in

any court or other proceeding, (i) we will not subpoena or otherwise request the

other party, a member of the Collaborative Team, an expert, or other nonparty

participant in the Process to make disclosure or to testify as a witness regarding a

Collaborative Process Communication, and (ii) we will not and cannot disclose or

offer as evidence a Collaborative Process Communication in any court or other

proceeding, and no Collaborative Process Communication will be disclosed or be

admissible or subject to discovery for any purpose in any such proceeding.

c. In the case of a Collaborative Process Communication by or with a Collaborative

Team member or other nonparty participant in the Process, our agreement to

waive any of the provisions of this Section 6.1 will be effective only if the Team

member or nonparty participant also agrees to the waiver in writing.

d. A Collaborative Process Communication means a statement, whether oral or in a

record, or verbal or nonverbal (including emails and other information that is

inscribed on a tangible medium or that is stored in an electronic or other medium

and is retrievable in a perceivable form) that (i) is made to conduct, participate in,

continue, or reconvene a Collaborative Process; and (ii) occurs after we have

signed an agreement such as this Agreement and before the Collaborative Process

is concluded.

6.2 We acknowledge that nothing in Section 6.1 is intended to preclude admissibility

or discovery of information that is or can be obtained from sources outside the Collaborative

Process; and thus, evidence or information that is otherwise admissible or subject to discovery

does not become inadmissible or protected from discovery solely because of its disclosure or use

in the Process.

6.3 We understand and agree that Section 6.1 is subject to the exceptions, limits, and

other provisions regarding a Collaborative Process Communication set forth in the Act.

ARTICLE 7

DISCHARGE AND DISQUALIFICATION OF PROFESSIONALS

7.1 We each agree to discharge our respective Collaborative Process lawyers and law

firms if the Collaborative Process fails, terminates, or concludes by only partial resolution. We

understand that striking this provision results in the Matter no longer being a

Collaborative Process Matter under the Act.

of 12

7.2 Except as provided in Section 7.3, we agree that a Collaborative Process lawyer

who represented one of us in the Process, and any attorney in a law firm with which the

Collaborative Process lawyer is associated, will be disqualified from ever representing either of

us against the other in a court or other proceeding related to the Matter (including post-judgment

matters).

7.3 We each acknowledge and agree that, pursuant to Illinois Supreme Court

Rule 294, a Collaborative Process lawyer or a lawyer in the law firm with which the

Collaborative attorney is associated who is otherwise disqualified may represent a party in court:

a. to comply with the procedural rules of the court as necessary to facilitate the

Collaborative Process;

b. to seek approval of an agreement resulting from the Collaborative Process; or

c. to seek or defend a petition for an emergency order to protect the health, safety,

welfare, or interest of a party or person eligible for protection under applicable

law.

7.4 With respect to all Collaborative Team members, experts and other professionals

who have participated in the Process (the “participating professionals”), we agree: (a) to

discharge all participating professionals if the Process fails, terminates, or concludes by only

partial resolution; (b) not to call any participating professional as a witness or seek to obtain or

use their work product in any court proceeding; and (c) except as otherwise permitted in

Section 7.3, not to ask or permit any of the participating professionals to assist either of us in any

court proceeding related to the Matter or to disclose any Collaborative Process Communication

in connection therewith.

ARTICLE 8

WITHDRAWAL OF PROFESSIONALS FOR VIOLATIONS

8.1 We understand that our Collaborative Process Lawyer and other Collaborative

Team members are permitted, and may be compelled, to withdraw from the Process if either of

us fails to comply with this Agreement. Examples of conduct that violate this Agreement

include, but are not limited to: (a) withholding or misrepresenting important information;

(b) acting illegally or in bad faith; (c) failing to make full and complete disclosure of our

respective income, assets, liabilities, or expenditures; (d) abusing the other party or the parties’

children; (e) secretly planning to leave the jurisdiction with the children; or (f) failing to

participate in the spirit of the Collaborative Process.

ARTICLE 9

CAUTIONS

9.1 We understand that there are no guarantees that we will successfully resolve our

differences by using the Collaborative Process.

of 12

9.2 We understand that the Process cannot eliminate concerns about the disharmony,

distrust, and irreconcilable differences that have led to our current conflict or dispute. We

understand that the Collaborative Process is not designed to address therapeutic or mental health

issues. When these or other non-legal issues arise, we understand that the Collaborative Team

members may deem it appropriate to refer either or both of us to experts or other professionals

who are not part of the Collaborative Team and have not participated in the Collaborative

Process.

9.3 We understand that until the Collaborative Process concludes, we are each

voluntarily agreeing not to exercise our rights to engage in litigation, court hearings, and the

formal discovery procedures described in Section 2.6.

9.4 We understand that by electing to forgo formal discovery in favor of voluntary

informal disclosure of information related to the Matter, even with a representation or warranty

of full and complete disclosure, we may be doing so at our own peril.

9.5 We understand that in the Collaborative Process each of us is expected to assert

our own interests and that therefore we should not lapse into a false sense of security in the belief

that the other participants in the Process will adequately assert our own interests without our

personal participation.

9.6 We understand that there may be statutes of limitations or statutes with timing

restrictions applicable to our respective legal rights, claims, and causes of action, and we

acknowledge that we have been advised to seek the advice of our Collaborative Process lawyers

or other lawyers about those matters. We understand that these circumstances may present a

reason for beginning a court proceeding by our agreement even while our Collaborative Process

Matter is in progress.

9.7 We understand that the Collaborative Process is voluntary and, despite our best

efforts, we may not reach a mutually acceptable settlement. We also understand that either of us

may become unwilling or unable to engage in necessary discussions, and that either of us may

terminate the Collaborative Process at any time, and with or without cause. In any of those

circumstances, the Collaborative Process would end, both Collaborative Process lawyers and

their firms, the Collaborative Team and other professionals who participated in the Collaborative

Process will be discharged and disqualified, and we would incur additional time and expense in

obtaining different professionals and commencing litigation. We understand that we might feel

pressure to settle in order to avoid this result and the additional costs.

9.8 We understand that the terms of this Agreement are subject to the Collaborative

Process Act and rules of court. If any provision of this Agreement is determined by a court to be

invalid, it will be deemed severable from the other parts hereof, and all other provisions of this

Agreement will remain in full force and effect with such provision severed, and the provisions of

the Act or rule of court will control.

[The remainder of this page is intentionally left blank.]

of 12

ACKNOWLEDGMENTS

THE PERSONS LISTED BELOW ACKNOWLEDGE THAT THEY UNDERSTAND

THE COLLABORATIVE PROCESS, AGREE TO PARTICIPATE IN THE PROCESS, AND

AGREE TO ABIDE BY THE TERMS, CONDITIONS, AND SPIRIT OF THIS AGREEMENT.

EACH PERSON WHO PARTICIPATES IN THE COLLABORATIVE PROCESS IS

EXPECTED TO SIGN THIS AGREEMENT.

EACH PARTY DESIGNATES THEIR COLLABORATIVE PROCESS LAWYER FOR

THE PROCESS, AND THE COLLABORATIVE PROCESS LAWYERS CONFIRM THEIR

PARTICIPATION IN THE PROCESS, AS FOLLOWS:

Jane Doe Date John Doe Date

Jane Doe will be represented by Theresa Beran Kulat

of Trinity Family Law, PC. John Doe will be represented by <Attorney Name>

of <Law Firm Name>

I, Theresa Beran Kulat, confirm that I will

participate in the Process as the Collaborative

Process Lawyer for Jane Doe in this Limited Scope

Representation.

Theresa Beran Kulat Date

I, <Attorney Name>, confirm that I will participate

in the Process as the Collaborative Process Lawyer

for John Doe in this Limited Scope Representation.

<Attorney Name> Date

Address: 5116 Forest Ave, Downers Grove, IL

60515

Address:

Telephone: 630-960-4656

Telephone:

Email: [email protected]

Email:

of 12

THE UNDERSIGNED ADDITIONAL PROFESSIONALS AND OTHER PERSONS AGREE

TO PARTICIPATE IN THE COLLABORATIVE PROCESS AND BE BOUND BY THE

TERMS OF THIS AGREEMENT.

Coach: Coach:

For:

Address:

For:

Address:

Telephone: Telephone:

Email: Email:

Date: Date:

Signed: Signed:

Financial

Neutral: Child

Specialist:

Address: Address:


Email: Email:

Date: Date:

Signed: Signed:

Other: Other:

Address: Address:


Email: Email:

Date: Date:

Signed: Signed:

Family Law & Practice MCLE Meeting DuPage Judicial Center ... · DCBA Events: 6/20/19 – 11th Hour...

Documents

Transcript of Family Law & Practice MCLE Meeting DuPage Judicial Center ... · DCBA Events: 6/20/19 – 11th Hour...