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Gitlin: Opposes collaborative law bill in divorce cases

Published: Sunday, April 28, 2013 5:30 a.m. CDT

Regarding proposed collaborative law in regard to divorce/family law cases.

A recent Northwest Herald frontpage article and subsequent editorial by the Northwest Herald’s Editorial Board spoke of the merits of bills pending before the Illinois House and Senate that propose legislation governing collaborative law in divorce-family law cases. I stand firmly opposed to the concept of collaborative law as applied to family law cases.

My opposition is on the basis of practicing family law for more than 53 years, the lion’s share of which has been devoted exclusively to family law. I also am opposed to the proposed collaborative law legislation on the basis of knowing what family law is all about. My firm and I have represented thousands of clients in divorce/family law proceedings, and I have written the book that is acknowledged as being the authoritative and leading work on family law for Illinois.

According to the Northwest Herald article, the collaborative law bill is being backed by Illinois Sen. Pam Althoff of McHenry. Sen. Althoff has represented McHenry County well, but in this instance she is wrong.

The purpose of the collaborative law legislation is, according to the Northwest Herald article, to make divorce proceedings more cost-effective and keep folks out of the courtroom. These are admirable goals.

But to make sure that the lawyers remain dedicated to the collaboration process, the law states that if either lawyer applies to the court for any type of relief, both the lawyers must withdraw (resign) from the case.

If my firm is retained on a case, our duty is to represent our client to the best of our ability. Now my firm would be faced with a dilemma of the other lawyer applying to the judge for relief. This means that my firm, as well as the other lawyer, must withdraw from the case.

What is happening is that when my client needs me the most – that is, when contentious court proceedings are going to happen in court – I walk out on her. This is not right, and this is why my firm and I do not engage in collaborative law proceedings.

If I were to engage in a collaborative law case, I would, if I had to withdraw from the case, have a tough trial lawyer ready to step in and take my place.

Divorce, by its very nature, is a contentious legal proceeding. We cannot, by legislation, make a silk purse out of a sow’s ear.

In its editorial, the Northwest Herald endorsed the Senate bill. In the box, called “For the record” you state, “We support legislation that would make it easier for divorcing couples to settle their legal separations outside of a courtroom.”

It has been said of democracy that it is not perfect, but it is the best system created by mankind. The same is true of resolving disputes by litigation. The American legal system is not perfect, but it is the best system known in the world. The legal system, the trial system, is not perfect, but it has worked for many centuries.

The Northwest Herald, in the instance of collaborative divorce, did not seek any input except from the proponents of collaborative divorce. There are many, many more types of cases that come before the court other than divorce. For example, there are personal injury cases, business breach-of-contract cases, landlord-tenant cases etc. If collaborative law is the panacea for divorce, as claimed, why have the other areas of law not embraced it?

• H. Joseph Gitlin is a Woodstock attorney practicing in family law.

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