Illinois Divorce Rules Embrace the Collaborative Process

Illinois Supreme Court Rule 294 has been enacted and prohibits an attorney from representing a client in a divorce case when the attorney has participated in the collaborative process on behalf of either party.

What is the collaborative process in divorce and why is this important?  The collaborative law process is a philosophy and process where the attorneys and the parties to a divorce work together to reach an agreement without relying on adversarial negotiations and court imposed decisions.  This process is meant to eliminate the adversarial nature of the court process.

Rather, the collaborative process encourages the parties to maintain direct contact with each other to discuss their issues.  The attorneys are involved in the process primarily to help the exchange information, not to bring motions or to take adversarial positions.  The attorneys and parties participate in group settlement conferences where all involved discuss the issues and suggestions for settling the issues.

This process is not for everyone and does not necessarily work in all situations.  However, the process permits the parties in a divorce to speak more freely, discuss their private concerns, and have more input and control over the terms of a divorce agreement.  Further, if either party elects to abandon the collaborative process and move forward by involving the court, the attorneys representing the parties in the collaborative process should have an agreement with the parties that the collaborative law attorneys will not represent the parties in divorce litigation.

This is important because participation in the collaborative process requires the attorneys and clients to speak openly with the other spouse and the attorneys, discussing thoughts that they may not otherwise discuss if engaged in divorce litigation.  A spouse will be less likely to fully participate in the collaborative process if he or she knows that the items he or she discusses in the process will be used against the spouse if the case should proceed to court to be handled.

Regardless of any agreements between the attorneys and the spouses using a collaborative process, Illinois Supreme Court Rule 294 prohibits an attorney who participated in the collaborative process from representing a client if the case moves into litigation.  This will protect the sanctity of the process and further help the collaborative process to be successful.

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