Jane’s divorce has cost us about $120,000. It’ll probably be closer to
$150,000 by the time the dust settles.” Micheal, a Chicago-based
architect, is speaking about his fiancee’s extremely bitter split with
her ex-husband. “We hired the best divorce lawyer money could buy, and it was worth every penny,” he asserts forcefully.
the other side of the coin is Susan, an assistant editor at a Toronto
newspaper. “We each entered the marriage with nothing, and we left with
nothing,” says Susan. “No kids, no money, no investments, no assets. Since we managed to remain on good terms throughout our separation,
we opted for a do-it-yourself divorce. Our divorce agreement basically
consisted of us saying, ‘You take the microwave, I’ll take the TV set’,”
you’re like most separated North Americans, your situation is probably
somewhere between Jane’s and Susan’s: you’ve acquired some assets — or
children — during your marriage, and you and your ex are relatively
civil to one another most of the time. You’ve also probably never had
occasion to retain a divorce lawyer before, and may have no idea how to
go about finding the divorce lawyer who’s right for you.
The search begins
many people spend less time searching for a family lawyer to handle
their divorce than they do shopping for a new car, home, or apartment,” says Lester Wallman, a partner in the New York family-law firm Wallman, Greenberg, Gasman, & McKnight and the author of Cupid, Couples & Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce (Mastermedia). “It’s shocking when you consider that their future, money, property, and the custody and support of their children may be forever affected by the quality of the divorce lawyer they choose.”
the right divorce lawyer is critical for your divorce and you can begin
your search by talking to those you know: ask for recommendations from a
close friend or family member (your friends and your family — not
your spouse’s) who have been through divorce themselves. If you can’t
get any personal recommendations, there are professional organizations
that offer family-lawyer referral services, such as The American Academy
of Matrimonial Lawyers (312-263-6477, www.aaml.org), The American Bar
Association — Family Law Section (800-454-8432 or 312-263-6477,
www.abanet.org), and The Law Society of Upper Canada (800-268-8326 or
416-947-3330, www.lsuc.on.ca). Ask for two or three names of local
lawyers who devote their practice to family law. Also, check your
phonebook for the number of your local Bar Association.
a library and take a look at the “Martindale-Hubbell” — a seven-volume
compendium of lawyers categorized by state and ability. Read the
biographies, and make sure the attorneys you select specialize in matrimonial or family law.
You could also visit a courthouse in order to see lawyers in action;
call the clerk’s office to obtain dates and locations of cases and
much” lawyer do you actually need? The best (and most expensive)
litigator money can buy, or someone who can handle the whole thing
quickly and inexpensively? Is it important to find a lawyer who’s
“compatible” with you: one who understands and respects your thoughts
and feelings about your divorce? Or can — and more importantly, should
— you handle your divorce yourself?
answers to these questions will be determined by your own unique
circumstances. Here are some basic guidelines to help put you on the
Finding a divorce lawyer
which divorce lawyer will represent you may be the most important
decision you’ll make during your divorce proceedings. As in any
profession, there are good divorce lawyers and bad divorce lawyers. It’s
up to you to do your homework — and to ask the right questions — to
determine which group your family attorney falls into.
ideal family lawyer lets you participate in a discussion about your
situation and is not afraid to tell you at the outset advice and
information you may not want to hear,” states Michael Cochrane, a
Toronto-based family lawyer and divorce mediator with Ricketts Harris, and the author of Surviving Your Divorce: A Guide to Canadian Family Law
(John Wiley Canada, 1999). “After spending 30 minutes with this divorce
lawyer, you can answer three questions: Do I feel comfortable with this
person? Do I respect his or her opinion? Does this person respect
Look for someone who:
- Practices matrimonial or family law. A divorce lawyer who specializes in taxation, even if he or she’s your best friend, isn’t going to be much help to you.
- Can work with other professionals. As a family-law attorney, he or she must be able to work with accountants, appraisers, and other expert witnesses to track down and evaluate assets.
- Has a lot of experience.
If your divorce lawyer is fresh out of law school, make sure he or she
has an experienced mentor at the firm — one with an excellent knowledge
of relevant divorce law — to go over his/her cases.
- Is a skilled negotiator. If your case can be settled without a protracted court battle, you’ll probably save a great deal of time, trouble, and money.
- Is firm. If you do end up going to court, you don’t want your divorce lawyer to crumble at the first obstacle.
- Is reasonable.
You want someone who’ll advise you to settle if the offer is fair, and
not to have the case drag on and on to satisfy your need for revenge.
- Is compatible with you.
You don’t have to become best friends, but you must be comfortable
enough with your lawyer to be able to tell him or her some of your
deepest, darkest secrets. If you can’t bring yourself to disclose
information relevant to the case, you’ll be putting your lawyer at an
extreme disadvantage. “It’s important to find a family lawyer you can
work with — one who’s on your wavelength,” confirms James C. MacDonald,
a partner in the family law practice of MacDonald & Partners in Toronto
and founding chairman of the national family law section of the
Canadian Bar Association. Your family lawyer isn’t your therapist or
confessor, but he or she does need to be aware of all pertinent facts in
order to do a good job for you.
- Is totally candid.
Your lawyer should be up-front about what he or she thinks your divorce
will cost, if there are holes or any problems with your case, and
whether or not you have any aces up your sleeve.
- Is not in conflict with your best interests.
Don’t share a divorce lawyer with your spouse; don’t hire your spouse’s
best friend (even if he’s a friend of yours, too), business partner, or
any member of your spouse’s family to represent you — even if you’re
on good terms with them. Aside from the obvious conflict of interest
involved, you’ll have created enemies — and probably a whole new family
feud — before your divorce settles.
- Is more than a pretty face.
This may seem painfully obvious, but given our frail human nature, it
bears noting here: don’t choose a lawyer based on physical
attractiveness. You’re looking for competence — not for a date on Saturday night.
Choose a Specialist
each divorce, different issues come up that require special attention;
so it is best to find a divorce lawyer who concentrates on the specific
issues that may arise in your divorce. Here are some examples:
- Men’s/Fathers’ Rights. “To find a good fathers’-rights lawyer, my first piece of advice would be to pick up the Yellow Pages,”
says Henry James Koehler, a leading Beverly Hills fathers’-rights
lawyer. “Call every lawyer listed under ‘divorce’ and ask them if they
win custody for fathers. If they say ‘yes’, ask them for a
consultation.” Koehler also suggests asking them for phone numbers of
their clients so you can call them to share ideas and problems and to
learn the technique of this particular lawyer. “Ask questions like:
‘Does he settle? Does he fight? Does he build a team out of himself and
the client?'” Koehler advises. Some lawyers, however won’t provide
clients referrals in order to protect their clients’ privacy.
- Women’s/Mothers’ Rights.
As a woman, you may have the right to a share of the assets (including
your husband’s pension), the family business, or property attained
during the the marriage, whether you worked outside the home or not. “A
women’s-rights attorney can help women get past the gender stereotypes
to ensure they receive their fair share,” says Arlene Coleman-Schwimmer
of the Beverly Hills law
firm Coleman-Schwimmer & Warren. “A women’s right lawyer knows the
language and the issues and has the experience to get past the barriers
that women face in divorce.”
If you believe custody of your children will become a major battle,
then going to a lawyer who concentrates on custody issues is very
important. “Finding a lawyer that has an expertise in child custody will
help achieve the most favorable outcome,” says Susan Cartier, a partner
in the Connecticut firm Cartier and De Matteo. “You want someone who
has the experience and a good working knowledge of the law surrounding
custody. Without this knowledge of the specific legal process the
children involved could be negatively impacted.”
- Small Business.
If one or both of you owns a small business, you should “seek a lawyer
or a firm that has knowledge of businesses and corporations as well as
family law,” says Gemma Allen, a partner in the Chicago
law firm Ladden & Allen. “Having the knowledge will guarantee that
you get your fair share. Your lawyer will have to look at the worth of
the business, cash flow versus debt, and evaluate corporate
partnerships, real estate, and your liability.”
If your divorce deals with out of state/country property, or if there
is a threat of having your child removed from the country, hiring a
family lawyer who knows international divorce law and policies is
essential. “Not every lawyer can handle cases such as these,” says
Lawrence Bloom, a New York divorce lawyer who regularly handles
international cases. “You need someone who has the experience and the
knowledge of other countries’ divorce laws and views on custody and
If one or both of you is facing bankruptcy, hiring a divorce lawyer who
understands bankruptcy law can save you lots of time and money. “When
bankruptcy occurs within a divorce, it can complicate things,” says
David Neale, of the Los Angeles family-law firm Levene, Neale, Bender
and Rankin. “You will want someone who has the know-how to serve your
best interests — and that includes knowing the law around bankruptcy to
ensure that your case isn’t put on hold due to the federal matters.”
Little firm, big firm
also need to decide whether you’d like to be represented by a sole
practitioner or a full-service family-law firm. Your choice will be
partially dictated by your spouse’s choice: if the divorce is relatively
easy and friendly, you can probably agree on what kind of
representation you need. If the divorce is very bitter; if there are
children, money, or large assets at stake; or if your spouse is just
plain “out to get you”, consider hiring a “top gun” — whether that be a
well-respected individual or a team of lawyers at a prestigious firm.
main advantage to hiring a sole practitioner is that you know exactly
who will be working on your case; in bigger firms, the lawyer you speak
to initially may not be the one who does the bulk of the work on your
case. You will get to know your sole practitioner well, which should
make office visits or phone conversations a little more comfortable.
people prefer to have this kind of one-on-one relationship with their
lawyer,” says Lois Brenner, a Manhattan divorce lawyer and co-author of Getting Your Fair Share
(Crown Publishers). “Divorce is a very personal and psychological
thing. Having a closer connection with a family lawyer allows a client
to feel comfortable and offers him or her the chance to give input.” A
sole practitioner will usually be less expensive than a big family-law
firm, although some top practitioners can be quite pricey.
you’re looking for a divorce law firm to represent you, remember that
they come in all types and sizes. A firm can be three lawyers and a few
paralegals, or 100 lawyers and more than 20 paralegals. You can hire a
general practice firm that deals with various areas of the law and has a
smaller department that handles divorce and family law, or a
matrimonial firm that handles only matrimonial matters. “In this world
of specialization, it can be essential to have an attorney or firm that
deals with family-law cases on a regular basis,” says Bernard Rinella, a
Fellow of the AAML and a partner in Rinella and Rinella, one of the
oldest matrimonial law firms in Illinois. “A general practitioner
wouldn’t know the everyday workings of divorce law that a matrimonial
attorney would deal with daily.”
Schiller of Schiller, DuCanto and Fleck, the largest family-law firm in
the US, agrees. “In a divorce, there’s a lot at stake and a lot of
issues. Having a family-law firm allows a client to have a huge fund of
knowledge and several divorce lawyers to back them up on every aspect of
full-service firm can give you access to specialists in other fields if
your case requires it. “You can get everything done in-house,” says
Malcolm Kronby, a Certified Specialist in Family Law practicing at
Epstein Cole and the author of Canadian Family Law (Stoddart
Publishing, 1997). A full-service firm can handle complications such as
shareholders’ agreements, business organization or reorganization,
tax-driven settlements (including asset transfers), establishment of
family trusts, real-estate transfers, or estate planning.
There may be a number of people handling your case at a big firm, which
has its own set of pros and cons. One advantage is that you get the
experience of a senior lawyer while lower-priced associates, paralegals,
and legal secretaries handle some of the standard elements of your
case, saving you money.
most importantly, Cartier stresses the importance of looking at your
individual divorce lawyer’s ability handle your case. “Size doesn’t
always matter,” she says. “If your particular lawyer listens to your
wants and needs and does all he can to achieve them, it doesn’t matter
if he is with a law firm of two or of fifty.”
The initial interview
outcome of your divorce proceedings will change the course of your life
forever, so invest the time and money to find the lawyer who will do
the best job for you. “When looking for a lawyer, you should interview
two or three prospective professionals before deciding who’ll represent
you,” advises Phyllis Soloman, a New York City lawyer and the former
president of the National Conference of the Women’s Bar Association.
Remember: it’s your responsibility to retain a lawyer who’s not only
good at his or her job, but one whose personality and outlook are
compatible with yours.
Here are the questions you should ask during your initial interview:
- Do you practice family law exclusively? If not, what percentage of your practice is family law?
- How long have you been practicing?
- What is your retainer
(the initial fee paid — or, sometimes, the actual contract you sign —
to officially hire a divorce attorney)? Is this fee refundable? What is
your hourly fee?
- What is your billing technique? You should know what you’re paying for, how often you will be billed, and at what rates.
- Approximately how much will my divorce cost?
The divorce attorney will only be able to provide an estimate based on
the information you provide — and your realistic estimation of how
amicable you and you spouse are. If you think your case is extremely
simple, but your spouse’s divorce lawyer buries your family attorney in
paperwork, you can expect your costs to increase.
- What do you think the outcome will be? Remember, you’re looking for truthfulness here — not to be told a pretty story.
- If your spouse has retained a lawyer,
ask your prospective lawyer whether he or she knows this lawyer. If so,
ask:”Have you worked with him or her before? Do you think the divorce
lawyer will work to settle the case? And is there anything that would
prevent you from working against this lawyer?”
- What percentage of your cases go to trial?
You actually want to choose a family-law attorney with a low percentage
here — a good negotiator who can settle your case without a long,
expensive court battle.
- Are you willing and able to go to court if this case can’t be settled any other way?
- How long will this process take? (Again, the answer will be an approximation.)
- What are my rights, and what are my obligations during this process?
- At a full-service firm, ask who will be handling the case: the lawyer you’re interviewing, an associate, or a combination of senior and junior lawyers and paralegals?
- Should I consider mediation? Ask if your case — at least in the initial stages — might be a good one for mediation. If there has been violence in the relationship, or one spouse is seriously intimidated by the other, this may not be a viable alternative.
- Should I consider Collaborative Law?
“In a collaborative practice, the clients themselves conduct settlement
negotiations with their lawyers acting as advisors to the clients
instead of taking charge of the process,” explains MacDonald, who is the
founder and current president of the Toronto Collaborative Family Law
Group. “Each party has to find a collaborative lawyer to represent him
or her.” MacDonald recommends Collaborative Law for most divorce cases
— except when violence or vengeance is involved.
- What happens now?
Do I need to do anything? And when will I hear from you? Finally, if
there’s something you really need to know, or if you don’t understand
something the lawyer said, don’t be afraid to ask for clarification.
“There’s no such thing as a stupid question,” says Susan Cartier. “If
there is something you want to know, ask. It’s your life on the line.”
Bring a list of questions with you to the initial interview; that way,
you’ll know if all of your concerns have been handled.
despite their best efforts, people end up choosing the wrong lawyers.
“Normally, a client will gravitate to the lawyer who will fulfill his or
her needs — whether that be for a tough litigator or low-key
negotiator,” observes David Wildstein, who heads the matrimonial
practice at Wilentz, Goldman & Spitzer in NJ.
If it’s clear that you’ve chosen the wrong lawyer, he says, don’t
compound the problem by sticking with them to the bitter end. “You’ll
either prolong the process unnecessarily, or end up with an unacceptable
settlement,” says Wildstein.
What your divorce lawyer needs to know
also need to provide information to your prospective lawyer during your
initial interview. The better prepared you are for this meeting, the
more you’ll get out of it. Just as you’re searching for the ideal
divorce lawyer, the lawyer is hoping you’ll be the ideal client: calm,
businesslike, competent, and well prepared. “Ideal clients are
organized; are willing to work together with me to attain their goals;
and are willing to listen to my advice, pay their bills on time, and
settle if possible, instead of tapping into their children’s college
fund,” says Soloman.
course every case is unique, but the following checklist will give you
an idea of what information your lawyer is looking for during your first
meeting. You need to disclose:
- Why you are seeking a divorce.
What caused your breakup? Are you sure you want to end the marriage, or
is the visit to a lawyer meant to be a wake-up call to your spouse?
“You need to be sure that you actually want a divorce,” says Wildstein.
“If you’re secretly hoping for a reconciliation, then you and your
lawyer are working towards different goals.”
- Personal data.
Bring as much personal data about you, your spouse, and your children
(if any) as you can gather. Write down your names (maiden name too, if
applicable); your home and work addresses and telephone numbers; your
ages and places of birth; your Social Security Numbers; your states of health — both mental and physical; your Green Card(s) and immigration papers (if applicable).
- Facts about your marriage.
When and where did you get married? Did you sign a prenuptial
agreement? If so, bring a copy of the agreement with you. Have either of
you been married before? Bring the details of your previous divorce(s) with you.
- If there was there any abuse in the marriage.
Your lawyer will need to know if you were ever a victim or a
perpetrator of abuse. Despite the fear you may have revealing this kind
of information, your silence will prevent your lawyer from doing his or
her job in representing you. Knowing about the abuse also allows your
lawyer to acquire orders of protection for you and your children.
- Whether there will be custody or access issues.
Do you have children, and are there issues that will involve them —
such as custody, joint custody, and access? “If so, be prepared to
discuss these issues in some detail on your first visit to your lawyer,”
says Philip Epstein, senior partner at Epstein Cole in Toronto. “This
is more important than financial information, because until you know
what’s happening with regard to the children, you can’t plan anything
with respect to your settlement.” Kronby agrees, but notes that “some
couples are able to defer custody issues and get the financial issues
out of the way first.”
- Financial information.
What assets and debts did each of you bring into the marriage? What are
your incomes and what are your expenses — jointly and individually?
What are the names and addresses of your employers? How much money do
both of you have invested: in the bank, the stock market, etc.? Has
either of you invested in insurance or a pension plan? What property do
you own (a house, car, boat, income property, etc.)? Was the property
purchased before or after the marriage? Do you have a mortgage, and how
much is still owed? Prior to your appointment, create a budget detailing
how much you spend every month on items such as housing,
food, clothing, personal grooming, gifts, vacations, etc. If you have
children, and expect to be their primary caretaker, make sure you factor
their costs into your budget.
- Legal documents. Bring copies of prior or pending lawsuits, bankruptcy suits, judgments, and garnishments.
- What you want to get out of your divorce.
Be very specific about your goals in terms of division of property and
other assets, custody and visitation, and support payments. Telling your
lawyer that “I just want my fair share,” or “I want to take that
cheating louse to the cleaners!” will not help him or her to assess your case.
Should I handle my own divorce?
People are attracted to do-it-yourself (also known as Pro Se,
which is a Latin phrase meaning “for yourself”) divorces because they
are supposed to save both time and money. Unfortunately, most divorces
are relatively complicated — involving complex property transfers and
their tax implications; plus the issues of support, custody, and access
if children or an unemployed spouse are involved. You’ll also have to be
able to prove grounds for your own divorce.
If you want to try the pro se
route, there are some resources available to help you. Check with your
local community college, adult education center, or community center to
see if they offer classes on divorce. There are some low-cost legal
clinics that will fill out your forms and review your separation
agreement to make sure the paperwork is complete before it’s filed with
people can get themselves into more trouble when they try to handle
their own divorce because they don’t know the procedural ropes, where to
file, etc.,” cautions Connolly Oyler, a family lawyer and
past-president of the Santa Monica Bar Association in California. “They
also don’t know substantively what they’re entitled to. There are a
hundred and one pitfalls.”
If you do
create your separation agreement yourselves, both you and your spouse
should each retain an independent lawyer to check all papers before
signing — even if the divorce is “friendly” and you think your
agreement is very straightforward.
quality do-it-yourself kit or book will provide a good introduction to
the divorce process. If your divorce is very simple and completely
uncontested, a kit may be all you need. But if things turn nasty, or you
suspect your spouse is trying to trick you into agreeing to a
settlement that really isn’t in your best interests, you’ll need to
consult a lawyer — who may have to charge you even more money to undo what you did prior to retaining him/her.