Getting divorced. Lawyer or mediation?
September 3, 2015 12:06 PM   Subscribe

Getting divorced in Illinois. I still love my husband, but cannot remain married to him for many reasons, one of which being that I can no longer take care of him emotionally and financially without ruining my own life. My first instinct was to try to settle this using mediation or collaborative divorce (I don't even understand 100% what this is, honestly). Mostly because I feel enormously guilty for leaving, don't want to make it harder on him, and hope that we can still be a part of each other's lives. No kids, so custody isn't an issue. But there are some major financial issues, and some of the things he's said worry me. Sorry, this is kind of a long one.

We have about $85,000 in credit card debt, with some cards in my name and some in his. The debt is a result of his divorce from his first wife, child support and expenses, stretches of unemployment on his part, and three years where I worked part time instead of full time. I made the mistake when we first got together of letting him control/keep track of all my finances, so there's a lot I don't know. I'm thinking I need to sit down with him and have him show me where the bodies are buried before this has a chance to get at all adversarial. So that will make for an awesome holiday weekend. I've already asked him to look up which cards are in my name and tell me how much debt is associated with them. He has no savings; I have an old 401(k) with a few thousand in it. We own a 2007 Civic together. That's about it.

The reason I feel like this could get ugly is that my husband has had basically no income for the last year. The reasons for this are complex, but it's partly because of bad decisions on his part that he refuses to take responsibility for. Longstanding poorly managed depression is also an issue for him. We've been living on my salary for the past year, including paying child support and expenses for his daughter from his first marriage. This has turned an already bad financial situation into a total disaster. I currently have an ok-paying full-time job, but even once on my own will be relying on financial help from my parents to rent my own apartment and deal with any expenses related to the divorce. I've decided I want to move out of our current apartment because it would make me too sad to stay there. He obviously doesn't have any money to pay rent there or anywhere else for that matter. He has family members who could help him, but he doesn't want to ask. Last night he said something to the effect of "You're going to come out of this just fine," and seemed to be implying that I should take more of the debt with me because I have a job and am more able to pay. He also said that he thinks he's going to end up getting screwed in the breakup. This is the point when a tiny voice in my head was like, "dude, get a lawyer." The thing is, I'm in such a storm of bad feelings right now, I don't know if I'm just being paranoid. Because this is AskMe, I will add: I am in therapy. The therapist thinks I should get a lawyer.
posted by anonymous to Law & Government (43 answers total) 7 users marked this as a favorite
you can get all the balances for your cards (and statements, and purchases made on said cards) on your own. all you do is set up accounts on all their websites and check the balances - you can also call the customer service numbers on the backs of your cards and have all of this sent to you (some will charge you for paper statements, so be aware of that). i would do this yourself as opposed to having your husband do this, so you know exactly where you stand.
posted by koroshiya at 12:11 PM on September 3, 2015 [9 favorites]

You should listen to the tiny voice in your head. These situations are exactly what a lawyer is for.
posted by gaspode at 12:11 PM on September 3, 2015 [43 favorites]

Lawyer. You'll need one anyway if things are worse than you think and you have to file bankruptcy.
posted by infinitewindow at 12:14 PM on September 3, 2015 [6 favorites]

Your therapist is right. A lawyer will be a source of reliable information that, sadly, you desperately need. A lawyer can also be an advocate, which you will need sooner or later.
posted by John Borrowman at 12:14 PM on September 3, 2015 [7 favorites]

This mefite thinks you should get a lawyer. It's not an either/or thing. You can go talk to a lawyer and use their advice to try mediation if you want to go that route. Or use the lawyer to draw up an initial plan so that your stbx has something to respond to. With depression and his lack of taking ownership of his situation, I doubt he'll do anything until he has to. So having something to respond to could be easier and save a lot of time. You can also draw up the papers yourself but be sure to have a lawyer look them over before you show them to him.

Feel free to memail me if you have any questions or just want to talk - I went through this a couple of years ago.
posted by dawkins_7 at 12:14 PM on September 3, 2015 [6 favorites]

also get a credit report for you - you get a free one every year. then make sure things match up and that your husband has not opened any credit lines in your name.
posted by koroshiya at 12:14 PM on September 3, 2015 [15 favorites]

Another thing a lawyer can do is provide an emotional buffer in case things do get ugly. They can filter all communication, and it's likely your husband will be better behaved to a third party. (Been there.)
posted by Orange Dinosaur Slide at 12:30 PM on September 3, 2015 [6 favorites]

I tried mediation, then collaborative and we finally ended it with lawyers. I think there are many situations where collaborative or mediation would work. I do not think this is one of them. If I were you, I would get a divorce litigation attorney. That does not mean it will be litigated, it just means they are not acting as a collaborative attorney. Once they sign on to be a collaborative attorney, if that does not work you both will need to get different attorneys.

My only advice would be to do your best to take emotion, guilt and other feelings out of it and look at it as a business transaction that will guide the rest of your life.

Good luck.
posted by AugustWest at 12:31 PM on September 3, 2015

Mediation is typically used in situations where both parties agree to not go through an adversarial court process, which can be painful, expensive, and drag on for a long time through the court system - depending on the attorney you get some argue that divorce attorneys have an inherent incentive to turn everything in a divorce proceeding into a fight to drag on the case. In some cases, especially ones where there are deep seated, intractable problems having such an attorney is a good thing. But there are certainly cases that might be good for mediation - you have to decide whether you think you'd be able to go through this process.

You work outside of the court system with a mediator, who is likely an attorney, and the two of you work together through the mediator to establish terms of a divorce agreement that is fair to both parties and addresses your concerns. The mediator is a neutral third party, not an advocate, so you will need to be able to advocate for yourself and have an understanding of what you think is a fair deal. There's nothing to stop you from still retaining an attorney in the process, but perhaps on a more limited basis as to giving you advice as to other things to consider.

The mediator will help you think through how to divide up your debt issues, tax liabilities, and other terms of the agreement until you come to a final document both of you think is fair. You're also not obligated to stay through mediation and can break it off at any time and go through the court procedures if you feel like that's going to get you a better outcome. Ultimately, it's far faster and cheaper to come to a mediated agreement than to fight it out over the court system.
posted by Karaage at 12:34 PM on September 3, 2015 [2 favorites]

So I know this is unsolicited advice, but what the heck...

Based on your statement:
I feel enormously guilty for leaving, don't want to make it harder on him
and this:
"You're going to come out of this just fine," and seemed to be implying that I should take more of the debt with me because I have a job and am more able to pay
and my past experience...

I recommend you get a copy of Emotional Blackmail: When the People in Your Life Use Fear, Obligation, and Guilt to Manipulate You and read it. I have let partners manipulate me into all sorts of unhealthy situations -- this book helped me see through and break out of the worst one. For me, I had to then step back and look at why I kept getting involved in messed up relationships -- not saying that is you but that was me.

And, yes, lawyer. Good luck OP -- I wish you the best.
posted by elmay at 12:40 PM on September 3, 2015 [21 favorites]

Lawyer. And, very important:

> My only advice would be to do your best to take emotion, guilt and other feelings out of it and look at it as a business transaction that will guide the rest of your life.

Yup. A few years from now you will have gotten over your guilt but will still be living with the financial results of the way the divorce is handled. You need someone who can advocate for you without any possibility of being guilt-tripped into sabotaging your own interests.
posted by languagehat at 12:43 PM on September 3, 2015 [15 favorites]

I just want to add that someone who allows you to create $85,000 worth of debt on his behalf is not someone you can deal via mediation. Also, I'm pretty sure that figure is far far worse.

You need legal intervention to lock down you credit and debt situation. A full credit report can help (IT'S FREE ONCE A YEAR VIA ALL THREE CREDIT BUREAUS - GET THEM TODAY!!) but there's all kinds of steps to lock your husband out of accounts in your name, and you need to take those steps. Legally. So you don't make mistakes and get in trouble with a judge.

I'm so sorry you are dealing with this.
posted by jbenben at 12:45 PM on September 3, 2015 [5 favorites]

If you are in the Chicago area, check out the Lilac Tree - they offer workshops and counseling for divorcing women.
posted by debgpi at 12:47 PM on September 3, 2015 [3 favorites]

$85,000 in credit card debt
letting him control/keep track of all my finances
He has no savings; I have an old 401(k)
basically no income for the last year
he refuses to take responsibility
Longstanding poorly managed depression
seemed to be implying that I should take more of the debt


Keep going to therapy, and let the lawyer guide your decision on any mediation that might help with the feels of this.

And don't spend a long weekend stuck inside talking about finances. If his control over finances has resulted in $85,000 worth of debt, then there is no way you're going to be able to ask any questions without it getting adversarial fast. Your lawyer will get those answer for you.
posted by mibo at 12:49 PM on September 3, 2015 [11 favorites]

The answer to the question "Do I need a lawyer?" is ALWAYS "yes."

If only for a basic consultation.
posted by Cool Papa Bell at 12:50 PM on September 3, 2015 [2 favorites]

Credit reports, for both of you. Yes you need to know what's in your name, but ask him to do the same. Debt collectors will go after spouses, know what you are dealing with.
posted by readery at 12:53 PM on September 3, 2015 [2 favorites]

I dont think you can trust him to tell you the whole truth about the debt. Get your credit reports, find out what the debt situation really is.

And yes, LAWYER.
posted by ktkt at 12:55 PM on September 3, 2015 [1 favorite]

There are financial planners that specialize in divorce issues who might be helpful to you in sorting this out. Your situation sounds complicated and it wouldn't hurt to have a second opinion on whether the lawyer/mediator has come up with an equitable plan, or even untangle some of it for you before the actual process has commenced.

Languagehat summed up my thoughts about your actual question better than I could. Much strength to you.
posted by Rube R. Nekker at 12:55 PM on September 3, 2015

If you're in the Metro East area of IL (east of St Louis), I can recommend a lawyer for you if you want to memail me. My divorce was cooperative and my attorney specified debts very carefully in the documentation. So far it has worked out well. Whether or not you have a cooperative divorce, you will probably need a lawyer at some point to file paperwork and make everything official, so I would definitely recommend seeing one as soon as possible.

If you don't think your spouse is going to be pleasant about having this talk with you, I would recommend moving out temporarily, or having a bag packed and a place to go, even if you're just going to crash on a friend or relative's couch. Do this before trying to have the money talk. If the situation ends up devolving and/or you feel like you really need to leave, it's better to have that prepared ahead of time.

And if you just want to talk about it, you can memail me too, because divorce sucks and it's good to have someone to talk to.
posted by possibilityleft at 1:01 PM on September 3, 2015 [1 favorite]

Call your local women's centre (or, if appropriate, your local gay men's centre, as I don't want to make an assumption) and ask what assistance they can provide. You may qualify for legal help, a support worker, an hour with a lawyer or other support. From what you described, you may have been in an abusive relationship and thus qualify for services. I personally have been able to manage much of my divorce/separation for a very low amount because I accessed these sorts of services and the lawyer, who is the kind of person who wants to help people, would tell me how I could do things myself or for free.

You absolutely need a lawyer. But the above services may help you figure things out.
posted by Chaussette and the Pussy Cats at 1:04 PM on September 3, 2015

If you can get him to couples' therapy, that might be a help in a) getting him to regular therapy eventually, and b) getting him to understand that you need a lawyer just to help negotiate with creditors. He might even be able to get relief from child support (he may not ethically want this relief, or be ethically entitled to it, but it's a way to frame things).
posted by amtho at 1:05 PM on September 3, 2015 [2 favorites]

Someone dealing (or rather not dealing) with long-term depression issues, who is controlling, secretive and very bad with money, does not seem like a person with whom good-faith mediations are going to work.

You can have compassion for their situation but also compassion for your own; you have a life and you need to save it. It's the only life you get. Letting the other person consume your future as well as take what they've already taken will not save them, but it will hurt you to no purpose.

Get a lawyer, let them help you find out your own information, and assume any information your ex gives you will both require double-checking and is likely to be incomplete.
posted by emjaybee at 1:16 PM on September 3, 2015 [8 favorites]

My divorce lawyer referred us to a mediator, so it's not an either/or situation. But the first step in that process is to, yup, get a lawyer. $85,000 is a lot of money. Half of $85,000 is a lot of money.
posted by MrMoonPie at 1:29 PM on September 3, 2015 [2 favorites]

In Illinois, give the Lilac Tree a call. They're wonderful and can make referrals.
posted by juniperesque at 1:36 PM on September 3, 2015 [1 favorite]

  • I made the mistake when we first got together of letting him control/keep track of all my finances, so there's a lot I don't know.
  • ...bad decisions on his part that he refuses to take responsibility for...
  • ...seemed to be implying that I should take more of the debt with me because I have a job and am more able to pay.
Mediation doesn't work when one party won't take responsibility for their own decisions, is controlling, secretive, and looking for the other person to bail them out of a bad situation of their own making.

FWIW, I've never heard anyone say, "Gee, I regret having hired a lawyer to help me through that divorce/lawsuit/etc." but I sure have heard people express regret that they didn't.

Listen to that voice telling you, "Dude, get a lawyer." That voice is right. I'm sorry you have to go through this, but you can mitigate the negative effects on you by getting expert legal advice to show you the potential trouble spots ahead.
posted by hurdy gurdy girl at 1:49 PM on September 3, 2015 [7 favorites]

Get a lawyer, please.

Also, not only pull your credit reports at (as advised above), but put a credit freeze on your credit, so that no new credit can be taken out under your name.
posted by Caz721 at 2:00 PM on September 3, 2015 [5 favorites]

" This is the point when a tiny voice in my head was like, "dude, get a lawyer.""

Listen to that wise little voice.

FYI, mediation is mandatory in Illinois divorces where custody is at issue, so every court in every county has court-approved divorce mediators available to you, generally even in cases where custody is NOT at issue. Just start a normal divorce process with your lawyer, and you can go ahead through the court's mediation process if you choose to; if it doesn't work out, it's an easy transfer to regular divorce court.
posted by Eyebrows McGee at 2:15 PM on September 3, 2015

You've been working and helping him pay child support? Please get over any guilt immediately. It sounds like a very sad time. I think he's right: you're going to be okay, but not so much financially as because you're functioning and he's not. As everyone may have mentioned: Lawyer. Lawyer. Lawyer. Do everything you can to find all bill, debts, assets. Give bankruptcy consideration. It sucks, but then it gets better.

I hope he gets some help. I hope you find your balance and things get better.
posted by theora55 at 2:50 PM on September 3, 2015 [1 favorite]

Oh. I had a mediated divorce. We had been to therapy and had processed some of the crap. We'd had pre-marital legal and financial counseling (which is, seriously, a truly useful thing). 20 years later, he complains about the settlement because he is a whiny jerk. Put your effort into finding a competent, reasonable lawyer and hope he does the same. If one or both of you hires a shark, it gets stupid and expensive.
posted by theora55 at 2:54 PM on September 3, 2015 [1 favorite]

Any time there are money disputes a lawyer is necessary. Don't hesitate, get one as soon as you can. And honestly I think you should move out soon. This situation could potentially turn very fraught.

In the meantime, you should immediately pull a credit report from each of the big three credit reporting bureaus, which you can do once per year for free using Get an account with Credit Karma, also, which is free and lets you check your credit score any time you want to and shows you current balances on all your accounts. You need an accurate picture of what's on your history, and I don't think you can trust him to both know all the details and tell you the entire truth.
posted by clone boulevard at 3:01 PM on September 3, 2015

I wish I had found the books/website Think Financially, Not Emotionally during the first year of my sister's divorce after several lawyers failed miserably to protect her. Very highly recommended, and he has a lot of free info in the Forbes magazine column he writes.
posted by Sophont at 3:32 PM on September 3, 2015 [1 favorite]

Nolo Press's Essential Guide to Divorce covers a lot of the basics, although it won't be state-specific.

You can talk to a lawyer for free for the initial consultation -- look at your state Bar's website to see how to do that. It will help to round up the basic facts about your separation before you get on the phone. They will talk you through everything you might want to know before you retain a lawyer, free.
posted by vickyverky at 4:22 PM on September 3, 2015

Collaborative divorces look a lot like they do in the movies: You'll be sitting in a room with your lawyer and your spouse and your spouse's lawyer, thrashing out the details of your settlement. You'll get everything in writing and then it's all filed after that.

I've seen a quote for $4,000 from one lawyer for this, so it's still going to cost you something. But get your free consultation first and then figure out how it's going to go with your husband. Protect yourself first, even if you do love him still.
posted by vickyverky at 4:26 PM on September 3, 2015

I think that for mediation to be successful, both parties need to be realistic and to have at least somewhat aligned motivations.

I think you should start with a lawyer who's just yours, to hear from him/her best case, worst case,and realistic scenarios for outcomes, given your facts and jurisdiction. I don't think you should start mediation with your husband until/unless he's also had that sit down with a lawyer.

People get a lot of unrealistic ideas in their heads about what they can get out of a divorce, and then they aren't willing to make sensible compromises. People are a lot more willing to believe what their own personal, personally paid for lawyer has to tell them about their rights and outcomes than a joint mediator.

Also, one of the big motivators for effective mediation is saving money. In some jurisdictions, he might be able to make a case for you to pay his legal expenses. Even if he's paying his own, he's shown himself not averse to wracking up debt. I would worry that he would be significantly less motivated than you to come to a sensible compromise (no one is ever 100% happy with a divorce settlement and that's probably how it should be).

Even if you had a completely mediated agreement, it's still a good idea (and best practices) for each party to have it reviewed by their own lawyer before signing.

I think that if each of you sees your own lawyer and it seems like there is some middle ground where mediation might be fruitful, you could explore that. But yeah, this doesn't seem ideal circumstances for mediation. (IAAL IANYL TINLA).

Also seconding what others have said. Ditch the guilt. It will not help you make good long term decisions for either of you.

I think you should budget generously for a lawyer now. This is really a situation of an ounce of prevention versus a pound of cure and not a time to stint. Make the time (ASAP) to find a lawyer you feel confident in - both her skill and that she gets you and your goals. Then let yourself be guided by her. (But stick with your therapist as using a lawyer as a therapist is a silly use of money).

Mediation is no guarantee that a friendship will survive, lawyers is no guarantee that it won't. I think it depends a lot on the pair's ability to positively collaborate through conflict and stress - and in your case there's no reason to think that would suddenly become easier during the divorce than it was during the marriage.
posted by Salamandrous at 4:44 PM on September 3, 2015

Sounds like one or both of you should at least look into bankruptcy. That's what it's there for; when someone who can't even afford rent owes tens of thousands of dollars. I'd make sure your attorney can advise you on that.
posted by salvia at 5:22 PM on September 3, 2015 [1 favorite]

Lawyer lawyer lawyer lawyer.

In my case it was basically negotiated between the two of us, but a big part of why the negotiation happened is that I was able to say, 'look, you can talk to me or I will sic them on you'
posted by PMdixon at 6:00 PM on September 3, 2015

You cannot go wrong seeking a lawyer's advice in your situation. If you're in the Chicago area and decide you'd like to consult a lawyer, please feel free to me-mail me for two referrals.
posted by slmorri at 6:44 PM on September 3, 2015

I think you really need to change your thinking about getting a lawyer. You feel guilty and want to keep your relationship with your ex and you worry that retaining a lawyer will automatically put you in an adversarial position. But it really doesn't have to be that way. Having a lawyer to handle the details of the debt and divorce can actually free you emotionally from all the negatives and move you to a more caring response. You can tell yourself that you no longer have to worry about all the details, giving you SO MUCH more time and energy to focus on the healing. You don't need to spend time worrying about all that awful crap, or not as much anyway. Legal help is really a tool you can use to move forward in a positive manner. You're paying for all the time you will gain to get your life back. It's a good thing.
posted by raisingsand at 7:21 PM on September 3, 2015 [3 favorites]

Yep, you need a lawyer. I would set up a consultation with a divorce lawyer and a bankruptcy lawyer. The biggest question in my mind is should you do the divorce first, the bankruptcy first, or both together.

Some people here have said bankruptcy sucks. That is not my experience. I adore bankruptcy. I am an attorney and the best part of my practice is helping people with bankruptcies. People are so much happier once their debt goes away. Life is so much easier for them once they've gotten their discharge.

A half hour consultation with a bankruptcy attorney will tell you if you qualify for an easy one. Based on what you've written here about your financial situation I'd place money that you do.

Once you know if you do or not, you'll know the scope of your problem. Because, honestly, I doubt you have nearly the legal problems you think you do. I practice in California, so I don't know the family law in Illinois (or the median income in your state/your income/local exceptions etc...), but what it seems to get down to me is this.

You have no or little shared property. You have an "ok paying" job which won't let you rent an apartment without your parents help. He has worked in the past. What that spells to me is that, one way or another, you will walk away from each other with little property and few (if any) obligations to each other. You can't get blood from a stone and all that.

Your share of the debt can almost certainly be wiped out in bankruptcy. You almost certainly qualify for a chapter 7 bankruptcy (the best type of bankruptcy). I doubt your legal fees for a bankruptcy will be more than $1500-$2000. The filing fee is probably right around $300.

The cost of the divorce lawyer is almost certainly going to be much greater than that if you guys can't agree to work together and walk away.

In other words, your legal problems ARE NOT THAT GREAT. A competent family law attorney and bankruptcy attorney in your jurisdiction will be able to tell you with even greater precision exactly how not that great they are.

It is perfectly natural to feel overwhelmed by what is happening. But it is also probably illogical. Get your last couple of years taxes together, get your last couple of W-2's, and make a list of the stuff you own and talk to the attorneys. You will probably be pleasantly surprised.

But all of this is about your totally manageable legal problems. Your emotional issues are going to be a lot worse, but you have a therapist and you have family to support you. You're probably going to be alright.

Good luck over there.

One last note, your husband is in a considerably worse position than you. His support and child support responsibilities are unlikely to be dischargable in bankruptcy. But his attorney should be able to get them reduced to match his, not your combined income, once the divorce proceedings start unless Illinois law is really insane. But you need to let his problems over. Those aren't your problems any longer.
posted by bswinburn at 8:04 PM on September 3, 2015 [7 favorites]

I'm in (roughly) the same situation in that my wife does not work and we racked up a crapton of debt together. My divorce lawyer told me to get an apartment of my own (Maryland law requires one year of living at separate addresses before you can file for divorce. I don't know about Illinois, but a lawyer in that state will). He then sent my wife a formal letter outlining what I would pay and when.

You can find out what debts you have by getting a credit report -- which you can get for free once a year.

According to my lawyer, now we wait a while - no mediation or court yet. He did say that mediation is likely to be cheaper and less emotionally traumatic. I only started the separation/divorce process about a month ago, and this is a first marriage for both of us so it is new and unknown territory.

I'm *NOT* happy that in addition to rent and utilities on an apartment, and my own debts, I'm paying a mortgage, utilities, and cable/internet for a house I no longer live in, a loan payment and insurance on a car I don't drive, AND a monthly "allowance" to my wife. But the law is pretty clear on this sort of thing, and I have to follow the law.

TL;DR version: Get thee a lawyer, and have him or her advise you of what to do. Get thee a credit report and show it to thy lawyer.
posted by tckma at 4:58 AM on September 4, 2015

I don't know where you live, but, where I live, you could potentially continue to be responsible for the child support. Please get a lawyer's advice.
posted by Chaussette and the Pussy Cats at 8:29 PM on September 4, 2015

Please get a lawyer.
posted by irish01 at 9:09 PM on September 4, 2015 [1 favorite]

This internet stranger thinks you have been INCREDIBLY selfless and giving. You are not a selfish person. I'm really proud of you for taking this step in taking care of yourself. You deserve thay, and you can't sacrifice yourself because someone else is not as good at taking care of themselves.
posted by Juliet Banana at 3:56 AM on September 5, 2015

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