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Strategic Divorce Planning and Divorce Consultation

January 2021
Victoria L. Masciopinto

Going through a divorce is difficult, but there are steps in filing for divorce, depending on the facts and issues involved, which may be taken in advance.  Certain potential divorce clients may seek "strategic divorce consultations," sometimes years in advance of filing for divorce.  Reasons for seeking a strategic divorce consultation may include:

  1. Receipt of Gifts/Inheritances – Gifts and inheritances will be classified as non-marital property as part of a divorce provided the recipient of the gift/inheritance keeps those monies separate, and apart, from the marital estate.  If any of the money is co-mingled with the marital estate at any time during the marriage, the commingled funds will transmute and become part of the marital property, which is subject to equitable distribution upon divorce. Recipients of gifts/inheritances are encouraged to seek legal counsel as soon as they receive any gifts/inheritances to ensure those monies remain part of their non-marital estate and to avoid issues of transmutation to the marital estate.
  2. Gaining Financial Independence – Many stay-at-home mothers have not worked outside the home during the marriage, and the longer they have been out of the workforce, the more difficult it may be to find a job after divorce.   Housewives also may seek to change and/or start new careers after divorce.  Rather than pay to further their education after the divorce is finalized, it may be prudent to further their education before the divorce is filed, so that the cost of education is a debt to be paid by the marital estate rather than wait until after the divorce is finalized.
  3. Custody – If either allocation of parenting duties (f/k/a custody) and/or parenting time (f/k/a visitation) is a likely issue, there is a laundry list of tactical do's and don'ts depending on the facts and circumstances of each case, which should be thoroughly evaluated before filing for divorce.  If custody is an issue, maintaining a calendar/keeping a diary of parenting time is always recommended in advance to filing for divorce.
  4. Domestic Abuse – If mental or physical abuse of a spouse and/or child is at issue, then immediate legal consultation should be sought to protect the victim(s) from future abuse.  It may be appropriate to seek an independent Order of Protection and/or exclusive possession on an emergency basis. 
  5. Financial Planning – In Illinois, the amount and duration of spousal support, or maintenance as it is called (f/k/a alimony), depends on a number of factors.  One factor is the length of the marriage.  The longer the marriage, the longer the award of support.  The duration of the marriage comes to an end the day a divorce is filed.  Therefore, before filing any action, it is imperative for the potential recipient of support to evaluate when to file for divorce as it may affect the duration of the award.
  6. Housing  - If a home will be sold during the course of the divorce, and there is a child still in school, there may be a need to delay filing to allow the child to end a school term and/or graduate before filing.  Also, if a spouse, or the marriage, is paying an educational debt such as for a child's college, or there is a student loan being paid off, it might wise to delay a divorce filing.  
  7. Shopping for a Legal Representative – Divorce consultations are confidential and automatically create an attorney/client privilege of confidentiality.  This means that once a spouse consults with a particular divorce attorney (even if the lawyer is not formally retained as counsel), the other spouse is unable to consult and/or retain that same lawyer.    

In addition to strategic divorce planning, once you foresee a divorce on the horizon, you should set up an initial consultation to interview divorce practitioners.  I always suggest to potential divorce clients that they meet with more than one divorce lawyer.  Most divorce lawyers will not charge a fee for a formal consultation, with most reputable lawyers willing to give you an hour or so of their time free of charge.  Remember, you are interviewing the lawyer to represent you and protect your interests - not the other way around.   If they require you to pay a formal consultation fee, then you may want to reconsider formally meeting with that individual.

What you should plan to bring with you to the consultation:

  1. Financials - Get access to the financial records, including: 3 years of personal tax returns, current year tax forms, bank and credit card statements and bills.  If a business is involved, bring 3 years of corporate tax returns to start.  These documents will be necessary to evaluate the nature and value of the marital estate.  
  2. Know the Household Budget - What does it cost to run the household?  What are your, and the children's, ongoing expenses?  This is vital in determining the amount of monthly support (if applicable) and the lifestyle enjoyed during the marriage.   
  3. Bring the Calendar/Diary – If there are custody/child-related issues.  The revised statute examines each parent's overnight time with the children for the six (6) months preceding the filing of divorce.
  4. Prepare and Bring a Statement and/or Timeline Regarding the History of the Marriage.  Specifically, your duties and responsibilities, and personal and financial contributions, made prior to and during the marriage, including: career sacrifices, homemaker duties and responsibilities to your husband, the family household and the children.  Except as relates to a paramour where a spouse is spending marital monies, marital misconduct is not a factor considered for purposes of support or equitable distribution of the marital estate so outlining the underlying reasons why a divorce is going to take place is not necessary.  
  5. Bring Your List of Questions - A divorce consultation is designed to help you find the right representative to protect your interests during the course of the divorce.  The lawyer you hire is your advocate and you should feel comfortable knowing that all your questions will be answered. 

Every divorce has its own fact pattern which requires the potential divorce litigant to seek an initial divorce consultation, sometimes well in advance of filing for divorce and other times on the eve of filing for divorce.  If you keep the above outline in mind and do your research thoroughly, you will find an attorney that has a philosophy that is aligned with your goals and beliefs no matter when the actual divorce may transpire. 

Victoria Masciopinto is a partner at Pedersen & Houpt concentrating her practice exclusively in the areas of Family Law, which includes representation in sophisticated divorce and parentage cases, both pre and post-decree, and in Wealth Preservation, including negotiating and drafting all types of premarital and post-nuptial agreements.   If you have any questions related to Family Law or Wealth Preservation, please contact Victoria at 312.261.2206 or at vmasciopinto@pedersenhoupt.com.

This communication is provided as a general informational service to clients and friends of Pedersen & Houpt. It should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. This material may be considered Attorney Advertising in some states. Please note that any prior results discussed in this material do not guarantee similar outcomes.