Divorce settlements can be negotiated with the help of a mediator or even by you and your spouse, if the case is simple (no kids, no substantial assets, usually of a short-term duration). If, on the other hand, your marriage is more complicated or there is conflict, you will need legal assistance. In many areas of the country you can decide how much legal help to buy, depending on your budget and your needs.
Is full-service representation right for you?
You have reviewed your personal circumstances and, after much soul searching, have decided that a full- service attorney is right for you. You have interviewed a number of attorneys, considered personal references, and finally, put down a hefty sum to retain the legal representation of your choice.
What you should expect? After you hire your matrimonial attorney, get ready to have a long intense relationship with the person you hire who will be your closest ally in your battle for "justice" against your spouse. You will be putting all your trust and faith into this person – once a stranger, but now piloting your case against the person who was once your lover.
This will no doubt be your first rebound relationship. Your divorce lawyer, and no one else, will be your most effective support during the separation and divorce process. Your relationship with your matrimonial attorney can be smooth or rocky, close or businesslike. You might come to think of your attorney as your confessor, therapist, Sir Galahad, or Amazon Woman.
But if you're going to make it through the divorce, you must banish these notions from your mind. Instead, it is to your advantage to learn (quickly) how to utilize your attorney in the most effective, cost-efficient way possible.
Don't confuse your lawyer with your shrink and waste your precious dollars using your attorney to vent your anger, assuage your guilt, or comfort your feeling of loss. Instead, seek the help of a qualified psychotherapist.
What your lawyer should be doing and when
The practice of law is not a science, but it's not exactly an art, either. There are certain things your attorney can and should be doing. For some guidelines, refer to the following list:
Your lawyer should have an overall plan for your case. This might simply mean that she plans to meet with your spouse's lawyer within the next month and settle the case, have documents drawn up within two weeks after that meeting, have them signed within two weeks after that, and then submit them to court. Maybe it means she's going to make an immediate request for support on your behalf and start demanding financial documents, with the goal of having your case ready for trial within six months. Maybe your lawyer can't say when things are going to happen because too much depend on what the other side wants; still, she should have a general idea of how the wants; still, she should have a general idea of how the case will proceed from your side given any number of scenarios. One matrimonial attorney tells us that clients often seek her out for a second opinion on their case. The most frequent complaint: their case has no direction, they see no end in sight, and it seems like they've always responding to their spouse's action with no overriding plan of their own.
Early in your case, your lawyer should demand any and all financial documents in your spouse's possession so that you can learn what there is between you to divide up.
If you or your spouse has a pension or any kind of employee benefit, your lawyer should get a copy of the appropriate plan documents and account statements for the past few years. Your lawyer should assess whether any experts will be needed in your case. If your wife has a hat-making business she established during the marriage, you might need a business appraiser to estimate the value of that business. Your lawyer should locate a well-respected forensic or business appraiser now for possible later use. Maybe custody will be an issue, and you'll need an expert to testify on your behalf. In some jurisdictions, the judge will appoint an expert to report to the court, but you might still need someone to support your case. Your lawyer should start getting you the names of qualified people.
Your lawyer should, under almost all circumstances, tell your spouse's lawyer that you are willing to listen to any reasonable settlement proposal and to negotiate. Cases have been settled on the steps of the courthouse on the day of the trial, so it's a good idea to leave the door open at all times.
Your lawyer should properly respond to letters and phone calls and keep you informed of all such communication. Copies of letter should be sent to you within 24 hours of the lawyers receipt. He or she should notify you about important phone calls — those concerning settlement proposals, for instance – as soon as possible. If the court hands down any decision regarding your case, your lawyer should notify you at once. Your attorney should return your phone calls within 24 hours unless there's some reason why that's impossible – for instance, if she's in the middle of a trial. On the other hand, you should only call when you have something to ask or something important to say. It's a good idea to write down questions and save them for a few days (unless they are urgent), so you can ask several at once. Some lawyers bill you a minimum of 15 minutes per call, so you might as well take up the time you'll be billed for anyway.
If your case is heading to trial, your attorney, with your input, should begin to interview and line up witnesses as needed. She should be sure to give your witnesses ample advance notice of the trial date.
If your case actually goes to trail, your lawyer should fully prepare you. If possible, you should visit the courthouse and even the courtroom in advance. Your lawyer should review the question he himself plans to ask and alert you about what to expect during cross-examination. One attorney we know even tells her clients how to dress on the day in court ("Go for the school teacher look," she likes to say, "and leave the jewelry and fur at home.")
Throughout the case, your attorney should give you some sense of whether the law supports your position. No attorney worth her weight will guarantee you a victory, but a knowledgeable lawyer should be able to tell you whether there is a basis for your position and what is likely to happen if the case is tried.
If your case ends with a defeat at trial, or if there are any defeats along the way (say you lose a motion when the judge denies your request for something), your lawyer to be able to provide you with sound advice about whether to appeal or seek reconsideration at the trial level.
Crossing the line
Observe the following attorney-client protocol
Although your lawyer might know more about you than your accountant or shrink, or even your spouse, it's probably not a good idea to become buddies. You want your lawyer to make objective decisions, not to cater to demands because you've become best friends.
In general, it's not a good idea for your lawyer to meet your kids. If your children are teenagers and their testimony is essential, of course your attorney must meet them.
Your attorney should not "come on" to you in any way whatsoever. If it's real, it can wait until your case is over. If your attorney does cross this line with you, report him or her to your state or province's bar's ethics committee.
Your attorney should not be in contact with your spouse if he or she has an attorney, unless his or her attorney has agreed to such contact.
Your attorney should not have a business relationship of any kind with your spouse or his or her family.
What your attorney needs to know
Many clients aren't sure when they should contact their attorney about a potential problem — something that might be important to the case. The bottom line is this: if you're not sure whether something merits a call, call your attorney. When you're through speaking about the problem, ask whether you should call about this sort of issue in the future. Maybe your lawyer will simply ask you to keep a dairy, which you can hand over for later use in your case. Maybe he'll want to be kept informed immediately, by phone.
How and when to talk to your lawyer
Keep your conversation focused on the reason for the call. Avoid raising issues your lawyer has already addressed. When on the phone with your lawyer, resist, the tendency to speculate. No single activity on the phone probably wastes more of your legal fee dollars than speculating on why your spouse has done something, what he or she might do, what a judge might do, or what the other lawyer might do. If too much time has elapsed since you and your lawyer agreed on a plan of action (your lawyer was supposed to call you husband's lawyer last week and hasn't done it yet), then make the call. The squeaky wheel gets oiled, but be reasonable. If your lawyer has said he or she would call you as soon as there is a decision in your case, don't call every day to check whether or not the decision has come.
When to fire your lawyer
Sometimes, lawyers are let go due to a straightforward personality clash. Or maybe you feel your attorney has mishandled your case. Sometimes, it's just a feeling that your case needs fresh ideas. You might also feel your attorney is giving in too easily to the other side or that trust has been breached. How do you fire your lawyer? The easiest way is to hire the replacement lawyer before you tell your present lawyer that you are making a change. Then your new lawyer makes the call and arranges to get your file. If you feel some personal statement or closure is in order, of course you can send your attorney a short personal note. Remember, most lawyers will expect to be paid in full before they release your file. If you have a problem paying the bill or a disagreement over the bill, discuss this with your present lawyer and work out an agreement.
The least you need to know about full-service representation
- Before you hire a full-service attorney, make sure you can afford it.
- Your lawyer should have a game plan, be on top of your case, and keep you informed of all developments.
- Write out questions and call your lawyer with several at once, if possible, to save time. When in doubt about whether to let your lawyer know something has happened, call.
- Don't stick with your attorney if the lines of communication have broken down.
- Find a new attorney before you fire your old one.
This article was excerpted with permission from The Complete Idiot's Guide to Surviving Divorce, Third Edition, by Pamela Weintraub and Terry Hillman. The book offers expert advice and common sense tips on typical financial, legal, and custody issues. The authors are the co-founders of Divorce Central, an online service. Ms. Weintraub has authored more than a dozen books and is the former editor-in-chief of OMNI Internet. Ms. Hillman owns a business that produces multimedia educational materials for professionals.