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Can You Talk To Your Spouse During An Illinois Divorce?
Divorce is the end of a relationship but the relationship is rarely truly over. During a divorce, the marriage is still unwinding as parties arrange schedules with their children, divide assets and debts and arrange for support.
During the divorce, the parties may have their own divorce attorneys who communicate with each other regarding the divorce. These divorce lawyers’ communications will be formal, direct and expensive. So, are you allowed to talk with your spouse during an Illinois divorce? Even if you are allowed, should you talk with your spouse during an Illinois divorce?
Divorce Lawyers Communicating During A Divorce In Illinois
People who are getting divorced in Illinois should retain an attorney. Without a divorce attorney, there is no way to effectively negotiate the terms of a divorce much less properly present your evidence to an Illinois judge.
When a party to a divorce has hired a divorce lawyer, that divorce lawyer is governed by the Illinois Rules of Professional Conduct.
The Illinois Rules of Professional Conduct restrict the types of communication a divorce lawyer can make. Specifically, a divorce lawyer in Illinois can only speak with the opposing party’s divorce lawyer (if they have one).
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Ill. R. Prof’l Conduct R. 4.2 (eff. Jan 1, 2016)
So, an Illinois divorce lawyer can never communicate directly with their client’s spouse if that spouse has their own divorce lawyer. The divorce lawyer must address all communicate to the other spouse’s divorce attorney.
The other divorce attorney who receives the communication from their client’s spouse’s divorce attorney must share that communication with their client.
“A lawyer shall:
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;” Ill. R. Prof’l Conduct R. 1.3 (eff. Jan 1, 2016)
Divorce Lawyers Communicating With Unrepresented Spouses In Illinois
If the other spouse is not represented by their own divorce lawyer, a divorce lawyer’s communication is still limited by the Illinois Rules of Professional Conduct.
“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” Ill. R. Prof’l Conduct R. 4.2 (eff. Jan 1, 2016)
Illinois divorce lawyers must communicate with unrepresented spouses in a very rigid manner where they are constantly reassuring the unrepresented spouse that they are not giving them advice and they represent the best interests of the opposing spouse. This is not an easy way to negotiate or sell a divorce settlement.
Because of these rules requiring a formality of communication, sometimes a divorce lawyer is not the best means of communicating an offer or settlement to an opposing party.
Communicating Directly With Your Spouse During An Illinois Divorce
You are allowed to speak with your spouse during a divorce whether either of you are represented by a divorce lawyer or not.
While you probably are communicating with your spouse about day-to-day parenting issues or other mutual obligations, you are also allowed to negotiate independently with your spouse.
These casual negotiations between you and your spouse are not binding. So, there is no risk in discussing the fundamentals of your divorce with your soon-to-be-ex. Nothing is final until it is in writing and entered into the record as an order of court.
“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children… Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court”750 ILCS 5/502(a)
The only exception to this requirement that any agreements in an Illinois divorce must be in writing and entered with the court is if there is a “claimof equitable estoppel.”
“A claim of equitable estoppel exists where a person, by his or her statements or conduct, induces a second person to rely, to his or her detriment, on the statements or conduct of the first person.” In re Marriage of Smith, 806 N.E.2d 727, 730 (Ill. App. Ct. 2004)
So, if the divorcing parties start acting pursuant to their individual negotiations. Those negotiations may be argued to be the basis of a new contract between the parties.
The Dangers of Communicating With Your Spouse During A Divorce
95% of divorces in Illinois are resolved by agreement of the parties. Independently communicating with your spouse during an Illinois divorce may alert your spouse to all of the terms which you would be willing to settle your divorce case for. Without knowing your rights under the law, you may be settling your case at terms far less favorable than what a divorce judge would finally order. Without a divorce lawyer advising you during these negotiations, you’ll never know if you were, in fact, negotiating against yourself.
Furthermore, the famous Miranda warning applied equally to divorce as it does to criminal cases: “anything you say and do can be used against you in a court of law.”
Your spouse can testify to anything you said to them before or during a divorce whether it was in the process of negotiations or not.
Your own words are not subject to the limitations of hearsay in an Illinois divorce court. Evidence of your statements will be allowed if “[t]he statement is offered against a party and is… the party’s own statement” Ill. R. Evid. 801(d)(1)
So, feel free to discuss your divorce with your spouse during your divorce but be aware of your rights under the law and that your words can be used against you in the future.
How To Communicate With Your Spouse During a Divorce
Usually, the happy medium between formal divorce lawyer communication and casually hashing out the issues with your spouse is to use the services of a mediator.
Mediation involves a trained third-party mediator who elicits the appropriate information, suggests possible solutions and terms of agreement. Upon reaching a full or partial settlement, the mediator will forward a summary of that settlement to the parties’ attorneys for preparation of the final divorce documents.
In fact, if the parties had children together, mediation is required.
“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. “ 750 ILCS 5/602.10(c)
While discussing the children’s schedules and needs, the mediator may also address financial issues such as division of assets, debts, alimony and other support matters.
Mediation costs shall be split by the parties by agreement or by order of the court (now or in the future)
The cost of the mediation “shall be borne by the parties and may be assessed by the court as it deems equitable without prejudice and are subject to reallocation at the conclusion of the case.” 750 ILCS 5/501(e)
If you’d like to learn more about what communication is effective and what communication is harmful to your Illinois divorce, contact my Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.