E06: What's Next: The Love Letter

You've Hired an Attorney—Now What?

In this crucial episode of It's Just Human Nature: Let's Boyle it Down, we pull back the curtain on the immediate decisions that must be made right after you retain a divorce attorney. Going through a divorce is an undeniable emotional rollercoaster, but protecting your future requires grounding your actions in legal strategy and reality.

Hosts Janet Boyle, Founder and Principal of Family Law Solutions, P.C., and Partner Robert Kipnis break down the very first steps of the legal process. From the delicate art of notifying your spouse to securing your financial standing, we explore how early choices set the tone for your entire case. Whether your split calls for an amicable letter, a strategic mediation session, or a strict court order, this episode equips you with the savvy you need for the road ahead.

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Disclaimer: This podcast is for educational and informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by listening to this show. Every family’s situation is unique; please consult with a qualified legal professional regarding your specific case.

Transcript

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So, welcome back to the next episode of It's Only Human Nature. Let's boil it down. Uh, today we are going to talk and presume that you have retained your attorney and that we are now deciding what it is that needs to be done. And there's a lot of decisions that have to be made right up front on how to proceed. So Bob and I are going to talk about some of those today. Good morning. And we're going to start with do you serve the other side? Well, it's a good question. I think a good starting point is to see if there's a safety issue with your client, if there's been any physical or other types of abuse leading up to them coming to your office, because if so, you have to contemplate what's called an order of protection. Okay. So what if you don't serve them, what would you do? How would you start the process? With a letter, an amicable letter indicating that you've met with the client and that he or she wants it to be done and amicably and quickly and without all the litigation that is necessary in some cases. And it's just a nice way of starting the case so that you're not you're having the sheriff or a special processor go and uh you know embarrass your spouse at work or at home or wherever. But you know, the other thing I've told clients to do is to maybe take my card and hand it to their spouse if they're on good terms, if there aren't safety issues, and just tell the the their spouse, have your lawyer call my lawyer. Here's my lawyer. And you know, because the idea here is to get the other side to respond and to participate. And how we do that can take, you know, everything from you know serving them with a order of protection to just handing them a card, right? The shot across the bow, yeah. I had a case once where uh the husband allegedly stomped on the wife's foot. So the wife went in and got an emergency order protection, and it was a horrible case from that point forward. The husband never forgave her for the okay. I I've had, you know, I always tell people, let's start nice, as nice as we can, okay, because you can't, you know, get a second opportunity to make a first impression. So if you can start nice, you can always deteriorate from there into some aggressive uh litigation. But if you start with aggressive litigation, it's real hard to back off to being nice. Yeah, that's true. And that's so that's kind of the first thing you have to decide is how do we tell the other side that you have engaged an attorney? You know, it really sets the stage. And if the other side is is not gonna play ball, then you've got to get them served. Right. And that can be difficult. I've had social process servers have to show up with with flowers or pizzas or something else and pretend to be delivery people, you know, just to to to get to the, you know, to get to them because they're evading service because they don't want the process to start. I'm sure you've been famous. Yeah, years ago we had a 70, 71-year-old female process server who everybody opened the door for. Sweet little ladies and you've been served. Yeah. And it's it's that's what you need is it's just that you've been served. And you can actually even leave it with anybody at the house over the age of 18. So, you know, if if you've got an adult child or there's somebody else living in the house, a nanny or whatever it might be, you know, those are people who can accept service, you know, for the person you're trying to serve. Right. I've had to go into their places of employment and have somebody serve them there, which is never a good way to start. But if, you know, if you're evading service, that's what happens. So I mean, I never tell a client to evade service, you know. I mean, because we're let's look at it the other side. Now you're you're being retained, but you the your client has already been served. So that's the other side of the coin, is it not? Yeah, I I give the same advice. Yeah. Just accept the papers, let's get it going. Yeah, let's get it going. There's no advantage to to to to avoiding service. So then we move on. Okay, so now we've either notified the other side, we've served them, whatever needs to be done. And then one of the next questions is is there an opportunity for alternative dispute resolution, for mediation, for you know, uh potentially arbitration, for things like that. When do you consider those viable options, Bob? Well, it depends on who you represent. If you represent the economically disadvantaged spouse, mediation's a great way to get free discovery and attempt to settle your lawsuit, divorce case. Yeah. And but there's two types of mediation. There's lawyer-assisted mediation, and then there's where just the clients go. Is that correct? That's true. I prefer the former. Yeah. Having especially if you're the economically disadvantaged spouse. If you don't have any idea of what's going on, you know, in your husband or wife's business, you know, with the finances, with any of those issues, you can't go to mediation just without a lawyer. You wouldn't have any idea of what you were looking at or doing, would you? True. Okay. So so now you could decide whether you want to make an, you know, an offer of mediation. And there's all kinds of mediation services out there. I know I prefer to use some of the retired judges who, you know, have sat in these cases. I think that's a more strategic and you know, a smarter way to go about it. Do you agree? Yeah, I found it much more fruitful to use former judges or retired judges. Yeah. They get it, they've been there, they've done it, and it's a streamlined process, usually. Yeah, and they've set up, usually they've set up their offices to accommodate that and that. But mediation can get funny. I mean, I had one where we were here before a retired judge, and you know, we we spent all day. We were there for like eight, nine hours. And the judge had her whiteboard and had everything written down and what the agreements were, and everything was up there. And all of a sudden, the wife looks over and says, Well, I just came here to talk. I didn't come here to agree to anything. And I have to admit, I almost went over the table. But um, you know, so I talked to the opposing counsel who had a come to Jesus meeting, as they say, with her client, and you know, we were able to get it done. But, you know, sometimes people just aren't agreeable, have no ability to settle. Have you found that? Yes, and it's tricky because mediation is for the most part non-binding. Right. So you can go through the whole process and get a memorandum of understanding and it's unenforceable. Right. And a memorandum of understanding is what the mediator writes up, is what the parties agreed to, right? Allegedly. Yeah. And that's always the key, isn't it? Allegedly. But yeah, there's some funny, funny things that come out of mediation because I we just had one recently where the mediator said, So what are your goals? And the the wife in this case had come armed with her goals. You know, I want honesty, I want transparency, I want to resolve this fairly. You know, she had everything written down. And, you know, the the husband was like, get it done. You know, I mean, I'll take whatever, you know, let's just get this done. Um, so you know, you get different personalities, you know, in mediations that have to be accommodated. Oh, we have to deal with that all the time, our clients' emotions. Yeah, right. Emotions. So, and that's that's something else that I think consideration is what kind of a client do you have that that may or may not be capable of participating in mediation. But even more importantly, maybe they're not gonna be able to participate in court. Um, you know, you just had a case recently where the client had some emotional uh issues, which made it very difficult for her to control her emotions, both in court or in settlement negotiations. What do you do with somebody like that? You gotta manage their expectations, you gotta manage their emotions, you gotta make sure that they're seeing someone and taking care of it on that end of it. And then you gotta explain it ad nauseum numerous times if necessary. I, you know, I think one of the questions I always ask people as a preliminary consideration is do you have a therapist? Do you do that? Oh, all the time. There's only so much support a divorce attorney can provide a client. And and we're at an hourly rate, we're more than a therapist, so they're better off charging you, paying a therapist than paying us as a general rule. Agreed, although therapists' hours are 50 minutes. Yeah, that's true too. Ours are ours are an hour. But yeah, so you know, but they it it's usually at a lot lesser rate, and sometimes it's even covered by insurance. But, you know, what I tell people is I'm not necessarily an advocate for lifetime therapy, but I really believe in situational therapy. So getting somebody in, especially someone who may be have been emotionally abused or financially abused or otherwise abused, they they don't have that confidence. They don't have that, they're so used to doing what the other side tells them to do. That getting them to some place where they can build those skills is so important. And I mean, I, you know, we we know therapists in most areas that we can refer people to because it's just such a tool that can be so helpful to going through this because it's not easy. Yeah, it's got to be utilized. I just sent someone to a therapist I know, and the therapist called me and said uh they're trauma bonded, yeah, which was a new label that I hadn't heard at the time. But it was helpful to the client to understand why she couldn't get out of this marriage, what was holding her back all those years. Yeah. She and her husband had had all these various traumas going along, and they just relied on each other. Yeah. There's so much that goes on, as they always say, you know, marriage behind closed doors. You don't know what goes on behind closed doors. You know, we're trying to untangle that all the time. And there's so often a financially lesser involved spouse that, you know, that are. So what kind of pleadings do we need to file as a preliminary consideration? What would you talk to? It depends. So if I have again, if I had the economically disadvantaged spouse who doesn't know what's going on, and we obtained some documents, which that's another instruction I give to prospective clients a lot of times. If you don't know what's been going on, get the tax returns, get the bank statements, get the documents over to us immediately. Right. And then you can consider if, say, in that circumstance the husband is spending or moving a lot of the money, you can consider filing a petition for temporary restraining order to seek to restrain, kind of maintain the status quo until you can get a handle on it. So a temporary restraining order does what? It would restrain the individual from um getting rid of, if you will, the cash or the money in the estate. It would maintain the status quo uh until you can get the discovery completed. Okay. And what if somebody stops paying bills? Uh, what do we do in that case? What kind of a plea petition for support or petition to maintain the status quo? Yeah. I I've seen so often where the kids are the ones who are put in the middle of this because one side or the other just stops paying like bills. So, you know, it can be something as is as traumatic as not paying the child school tuition at a private school or a boarding school, not paying their ice skating or equestrian fees. I just had one where they wouldn't pay, he wouldn't pay the dance fee. Yeah. And there was a big recital coming up. Right. So we had a threat and an emergency petition for dance recital. And we can file emergency petitions, right? Yes. They have to be a sudden and unforeseen event, and the judges are sticklers about emergency. They really are sticklers. And then Lake County, if you file an emergency and it's denied, you're subject to their attorney's fees. Yeah. It it's they've really, judges have really limited emergency relief. I always tell clients, you know, it's almost like you have to have blood on the floor before you can get an emergency hearing. And that's unfortunate. But you know, what people don't understand is that, in my opinion, is that, you know, the their one case and their case is so important to them. It's the most important to their lawyers, okay, to their family. But these judges are dealing with hundreds or thousands of divorce cases every day. And, you know, it's there's a saying lately about um, you know, rich people's problems, one percenters' problems, things like that. But, you know, those are real. And, you know, judges get a little hardened, would I think would be the word to some of these money issues because they see the worst of humanity on so many of their other cases, you know, where people are, you know, um being beat up or somebody stole the child or, you know, all those terrible things that happen. But to somebody who is in the 1% or does have, you know, significant assets, you know, going into court and saying, pay my client's support when she's sitting on six or seven million dollars in the bank, if that could be a hard sell. Yeah, that's a separate issue. Yeah, but it's but it's real to that person. Why do they have to invade their bank account when the other side has all the income and that is what they should be receiving a part of? Right. Well, as you go along in the process, you pay bills sometimes without prejudice, quote, without prejudice, end quote, and then you can reallocate that at the end of the case. Is there a way to be a little bit more strategic or savvy and how to present these to judges? Uh for example. You stun me. For for example, I mean, if you really lay it out, why is this important? Why is this an emergency? Well, again, you got to get over that hump, and that's a tough hump to get over, is what's the sudden unforeseen event? Um, I was sitting in court in December when there were two or three in a row where lawyers stepped up and there was a dispute about who gets Christmas Eve and who gets Christmas Day. And the judge's question was, when did you know December 25th was Christmas? Denied, not an emergency, not an emergency. And there were there used to be judges, I know in Cook County, used to have literally signs on the bench that said Christmas comes on December 25th every year. Okay. And you gotta be strategic about it because if you lose the emergency, much of the time it empowers the other side. Right. They think they won something when you haven't substantively litigated the underlying issue. And in reality, losing the emergency doesn't mean you lost the motion, it just means that you're gonna you get in line and don't move on it when they get to it. So the judge will get to it. It's just that they're not gonna get to it today. Right. You know, so I know you know we had a case recently where, you know, the the there was an issue of the wife not receiving support. The husband made a significant amount of money, and the judge did on you know a pretty quick basis, order the husband to put at least X dollars into the joint account every month. Is that correct? Right. That was uh kind of a hybrid status quo order. Give the money to the wife and then let her pay the bills. Yeah. And it was a status quo, which meant that was a number that he had typically put into the account. So the judge was comfortable with requiring him to continue to do that, right? Right. And support, you would file a petition for temporary support if somebody needed the income to come in, right? Yes. And so at the beginning of the case, when they get the engagement agreement or immediately thereafter, we send the financial affidavit, help the clients with preparing that, and then file a petition for temporary and permanent maintenance, which is ironic because there's no such thing as permanent maintenance. It's indefinite maintenance. Yeah. Because people die, people get remarried. Right. So indefinite means we're not going to tell you how long. It's just that until there's a further order of court, this gets repaid, right? Right. Yeah. And um, so you're filing for temporary maintenance. You would also file for temporary child support, correct? If there's kids in the issue. And then temporary payment of other bills, such as the children's expenses, such as medical insurance, such as those things, correct? And those can be substantial. Hockey, horses, some of the stuff is really ice skating. It's expensive, especially hockey, because the kids are growing. So the equipment's like for a year and then you need new equipment. Right, skates. So, I mean, but also like the travel leagues. All these kids are in travel leagues, you know, of of baseball or or or or soccer or hockey or something. And now you've got, you know, hotels and and transportation and all of those things, and usually a parent going along with. So that's all in addition to the child support component. Right. And that's something that needs to be addressed. What about private schools? You know, you've got parochial schools, you've got just got private schools, you've got boarding schools. How are those addressed? So the first thing you look at is uh whether or not the children went to private schools before the divorce was filed. And if so, you try as best you can to maintain the kids and their lifestyle that they had. Circumstances change, now you have to support two households, so it's not always the case. Yeah. Yeah. I've had issues over, you know, the kids going to parial grade school. Okay, and then nobody wants to pay for parochial high school. Um, I just had a case recently where what we did is that was something that people don't usually know is that you can use 529 accounts for private schools pre-college, right? Up to, I think it's $10,000 a year. I I'm not sure if they changed that limit, but it used to be $10,000 a year. So when you're, you know, you've got these $529 accounts, you know, you can evade those to, you know, to pay at least a portion, you know, to of the the uh private school tuition, which can be horribly expensive. Oh yeah. And that so you know, if you've got the money, the kids should be maintained, and you know, the judges will usually try to do that. They try. Yeah. But if there's, you know, sometimes, and let's just, I don't care what income level you're at, sometimes people spend all they make, and then some, yeah, exactly. Which is another issue for another time is marital debt. I I I remember the first time I saw somebody who lived in like Glencoe, and then I realized the house was mortgaged to the hill, the car payments were absolutely ridiculous, the credit card debt was ridiculous, but they lived in Glencoe. Um, you know, so there's there's always, you know, looks can be deceiving. And then when you end up where you throw a divorce on top of people who are kind of living beyond their means a little bit, um, you know, it can't be supported. So now we have to make some tough decisions, or the court has to make some tough decisions. Things do can get out of hand. I had a case where my client was alerted that his wife was going to start stealing things from the home. So we hired a private investigator to watch outside the house. And virtually after parking right outside the house, a truck came by with the brass downspouts, the doorknobs, the hinges, anything of any value in that house, she stole. Yeah. I had one, a very similar situation. It was a house out in Barrington, one of those great big monstrous houses, you know, probably eight bedrooms and six bathrooms and everything. And while my client was off on a business trip, the wife stripped it down to the the shower rings, you know, on the shower, you know, the shower pole, on the uh took all the toilet paper and the toilet paper uh where you put the roll. The holders, the holders, everything. I mean, down to nothing. Okay. And I had to go to a full hearing on getting this stuff back and whether she'd be should be restrained from entering. Well, there's nothing, no reason to enter the house anymore. Right. We we litigated ours as well and determined that she sold everything. Yeah. So she had to pay him some money back. In in one of our last episodes, we talked about dissipation and you know, how dissipation is the use of marital funds for non-marital purpose. But there's also case law that says dissipation is doing things like that, like stealing the downspouts, like doing those types of things where you can get, you know, compensation for that. Right. Um, destruction of family photos has been found to be dissipation. So those are things, you know, sometimes people threaten you to you know, burn it down photos, I'm gonna take all the kids' memorabilia. So many things that can happen that we need to make those decisions. And as we started this conversation, these are the preliminary decisions that need to be made when you first hire your lawyer. Do you need support? Do you need an order of protection? Do you need a temporary restraining order? Do you need uh whatever else there may be? Parenting, we didn't talk about that. But sometimes if a child is in danger, do you need limitations on parenting? Those are the decisions that need to be made pretty quickly after you hire your lawyer. That's why it's important to strategize with the client and get all the information. And very important if you're the client to give the information. It's all privileged. Even if you think it's something that's not important, tell your lawyer because it may be. And it could give you the ammunition you need to get those re you know, the the relief. So, yeah, there's been some crazy things with temporary restraining orders. Another example is the one we had recently where the husband was moving all the money out of the country to another country. But we went where it was unreachable. Yeah. Well, we went back to the judge and he says, Well, I'm not going to give you a restraining order because there's enough other assets here. Right. Even when you get a restraining order, sometimes uh it doesn't work because of the ordinary quote ordinary course of business. Right. And if the individual has been doing those types of things for a while and there's some pattern of it, then the judges are but you're also not going to get a restraining order unless there's no adequate remedy at law. Right. And you know, every judge, you know, and the thing you're gonna keep hearing from us episode after episode is every judge is different. What one judge says is is is valid, another one says is invalid. What one thinks is important, the other one doesn't think is important. So strategize, be savvy, be smart. Know your audience. Know your audience. And deciding that was something we didn't mention. Deciding whether to keep the judge that your case was assigned to be another preliminary consideration because some judges are pro-men, some are pro-women, some are not good for anybody. And in Illinois, you're entitled to one SOJ, which is a substitution of judge as of right. You don't need cause. So you could just say, I don't like the way they look. Right. They have to grant it. And they have no choice, you can get the case out of there. But sometimes you have to be careful of the devil you know versus the devil you don't know. You might do worse. Yes, exactly. So so I hope you found this interesting and we will see you on the next episode.