Choosing A Divorce Attorney

Make sure your lawyer has extensive experience in family law.

The first step to move forward with your divorce action is to obtain an attorney. For many, divorce represents the first time they have used the services of an attorney. For others who have a family attorney, the initial reaction is to call on an attorney you have used in the past. Regardless of your background, special attention must be paid to your choice of a divorce attorney.

Also, you must be prepared to answer the inquiries of your attorney. For both you and your spouse the attorney will want to know name, address, phone numbers, social security number, employer and work history, income, investments, retirement plans, health insurance, physical description, date and place of birth, parents' names, date and place of marriage, details of previous marriages, among other information.

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Unless you and your spouse already have a solid agreement on the basic division of your property and there will not be a custody fight over any children, you should be careful to find an attorney with substantial experience in the field of family law. While it is not necessary to find an attorney whose exclusive practice is family law, it is important to hire an attorney who is experienced in this area of law and who is familiar with the custom and judges in your locality. This experience is necessary because many areas in divorce law allow a court considerable discretion in issuing rulings. Accordingly, it is important to have an attorney who has experience with the approach taken by a particular judge.

There are many ways in which you can obtain names of attorneys who practice in the area of family law. The first is that of referrals from friends and other family members who have gone through divorces. The only problem with obtaining referrals from friends and family is the issue of privacy. You may not want to share the details of your situation with friends and family prior to filing your Petition and, therefore, care should be taken if you intend to use this option.

Another way to obtain a referral is by calling your family attorney. Your attorney is probably in a good position to give you names of several attorneys in the area who concentrate in the field of family law. If you are thinking of retaining your family attorney, one concern that will arise is that of a conflict of interest. Your family attorney probably represented both you and your spouse in the past. In that instance, unless both parties have been advised of the conflict and have waived the conflict in writing, the family attorney cannot assist you directly.

An additional concern in consulting with your family lawyer is the possibility that he or she may want to handle the case on your behalf, even though family law is not his or her area of concentration. Given that the marital situation with your mate may be either hostile or financially complicated, it may be in your best interest to inform your family attorney that you want someone who focuses his or her practice in family law.

Finally, if your family attorney provides you with a referral, inquire as to whether he or she will receive a referral fee. This fee can generally only be paid when the payment of said fee has been disclosed to you. If the payment of a referral fee concerns you, you should immediately review the issue with your attorney and discuss your objections and concerns.

In addition to friends, family, and your family attorney, another source to obtain information regarding attorneys in the area of family law is a referral service. In general, the American Bar Association as well as state and local bar associations in your area can provide you with the names of attorneys who specialize in family law. Finally, your local telephone book can still provide a good source of information. Often, the concentrations of a particular law firm are listed in the advertisement.

Regardless of how you locate an attorney, the same rules apply prior to the retention of legal counsel. First, the attorney should take the time at your meeting to become generally familiar with your assets as well as your concerns regarding the minor children. He or she should also answer your general questions regarding the divorce process. Finally, the attorney should provide you with an idea of how the courts determine issues regarding custody and visitation in your area as well as any general rules regarding the division of assets and debts.

If the attorney with whom you consult promises you a given outcome, you should be concerned. If his or her promises sound like you will receive much more after the divorce then you originally anticipated, you should consult with another attorney to determine if the statements are consistent. The lawyer should provide realistic advice so that your expectations are reasonable. There is nothing more frustrating to the court than parties to a divorce who are under an impression that they are entitled to something by law that is simply a matter of discretion for the court.

An additional concern to watch for in choosing an attorney stems from those who indicate that they are advocating rights for a certain gender. While it is true that both men and women have rights in a divorce action that may not have been clearly articulated in the past, care should be taken before retaining an attorney whose goal is to establish your rights as a member of a certain gender, as opposed to creating a strategy consistent with your individual goals. You should inquire of your prospective attorney whether he or she provides services to members of both genders and whether his or her legal practice is limited to any particular group or class. You may not want to "test" the extent of the law by using a lawyer who has such a personal agenda.

You must feel comfortable with your attorney such that you can establish a good pattern of communication. Perhaps the biggest complaint against attorneys in the area of family law is that of poor communication. Issues such as not returning phone calls, providing inadequate information regarding the status of the case, or not providing a clear understanding of client rights and obligations are often brought up by clients in complaints to the local attorney disciplinary agencies. These items, however, can easily be avoided if you and your attorney establish a clear pattern of communication ahead of time.

At the same time, clients sometimes have unreasonable expectations regarding access to their attorneys and do not think through the questions they ask and the demands they make on their attorneys. There are several good tools to employ to establish good communication with your attorney. First, before you formally retain an attorney, you should ask for a written fee agreement if one has not yet been presented to you. The fee agreement should set forth the hourly rate or rates of your attorney, the items you will be billed for, the manner in which costs that are advanced by your lawyer will be handled, and the manner and time frame in which you must pay the bill.

Additionally, you should ask your lawyer to issue monthly invoices to you so that you have full knowledge of the fees as they accrue. This will allow you to use a cost-benefit analysis in pressing a particular issue. For example, if an asset is worth $2,000 and it is going to cost you $3,000 to obtain it, it may not be worth your efforts. Keep in mind that your attorney cannot guarantee the total end cost of your case because the fees will vary depending on the other party's responses to certain actions. However, by carefully reviewing monthly invoices issued by your attorney, you can employ your own analysis and make informed decisions.

Family lawyers generally charge on the basis of an hourly rate. Therefore, you are charged for the time spent on every task your attorney performs on your case. This billing generally includes all time spent traveling, talking to you or the opposing attorney on the telephone, making notations, drafting pleadings, reviewing correspondence, and any and all other tasks performed by the attorney on your behalf. Because attorneys charge fees on an hourly basis, you should be aware of steps to assist in keeping your fees down. One basic, but often forgotten, rule is to minimize your contact with the attorney because you will be charged for each and every contact you make. Clients often call their attorney daily with reports regarding what occurred the previous night. These calls are sometimes necessary, especially if violence is present in the home. However, there are times when you could wait to call until you have several questions for your attorney. This will save money because only one charge will be made for the consolidated questions. Telephone time actually mounts up quicker than is realized. Be organized and businesslike when communicating with the attorney.

Another way to minimize your fees is to utilize the office personnel of your attorney as much as possible. For example, while paralegals or legal assistants generally charge for their time, their rates are greatly reduced compared to an attorney's hourly rate and they may be able to answer a specific question or obtain the information you are seeking, such as the time and date of the next court appearance.

Finally, you should keep in mind that it is not uncommon for clients to have difficulties contacting their divorce attorneys. Divorce attorneys are frequently in court and as a result, they spend limited time in their offices. One way to make it easier for you to be in contact with your attorney is for you to ask the attorney's assistant/secretary to schedule a phone conference at a particular time and date convenient for both of you. This will save frustration and will eliminate "telephone tag."

As a general rule, you have a right to obtain a new attorney if you so desire. If you are unhappy with the services of your current attorney, you should instruct that attorney to request that the Court allow him or her to withdraw from representing you. Similarly, your attorney has the right to file a Petition to Withdraw if he or she no longer wishes to represent you. In most instances, the Petition of an attorney to withdraw from representing you will be granted. However, if the withdrawal of an attorney will unduly prejudice the rights of the other party or if the withdrawal of an attorney presents a substantial burden on the Court's busy schedule, then the Court may deny the request for your attorney to withdraw at that time. The Court's schedule is often filled several months in advance and, therefore, the Court date may be unduly prolonged if one party obtains a new attorney.

If your attorney withdraws from representing you and there remain outstanding fees due, your attorney will be granted permission to request that an Order be entered against you or your spouse for the payment of the attorney's fees and costs. This same rule would apply if you failed or refused to pay your attorney's fees and costs as billed to you. If a fee contest is heard before the Court, you have the right to be represented by an attorney or you can represent yourself at that hearing. The Court, after granting an opportunity to hear testimony from you and your attorney, will establish the appropriate amount of fees to be paid, if any.

In addition to seeking new counsel, if you believe that your attorney has acted inappropriately during the period of time in which he or she represented you, you may file a complaint with the disciplinary commission that has been established by your state. This disciplinary commission is usually under the control of the supreme court of the state in which you reside. If you are unable to obtain information regarding the filing of the complaint against your attorney, you should contact the American Bar Association or the state or local bar association in your area.

If you believe that your attorney engaged in inappropriate conduct or failed to take appropriate steps to protect your rights during the divorce process, then you may be eligible for a monetary award if you have suffered financial loss. However, the monetary award would have to be obtained through the filing of a legal malpractice case against your attorney. A legal malpractice case would be a separate lawsuit and should be addressed with an attorney who handles legal malpractice cases. You will not be able to obtain a monetary reward if you file a complaint against your attorney with the local disciplinary board or commission.

Overall, in dealing with your attorney, you must keep in mind the emotional state under which you are making decisions. You should be careful to listen to the advice of your attorney and follow it to the best of your ability. Your attorney is an advocate on your behalf who will work with you to move forward to a resolution that is in your best interest. Your own common sense and the advice of your attorney will give you ample guidance to get you through the legal process of divorce.

In many instances, people decide to represent themselves in their divorces. In fact, some states have created simple procedures to allow spouses with uncontested cases that do not involve children or substantial assets to obtain a divorce quickly and inexpensively. Some people seeking a divorce decide to let their spouse choose an attorney and then represent themself in the proceeding without an attorney. This is generally acceptable. However, two items must be considered before making this decision. First, the courts will generally hold a person representing himself or herself to the same standard as any attorney practicing before the Court. Secondly, while you may believe your case is simple and straightforward, there may be issues that should be addressed that you have not considered or on which you need specific legal advice. Especially in cases involving children or a long term-marriage, an attorney should be seriously considered.

One barrier at this stage is the cost of hiring an attorney. In general, attorneys require a retainer, which is payment of a certain sum prior to commencing representation. If you cannot afford to hire an attorney, you should obtain the names of attorneys or agencies that offer free or low-cost legal services. Your state's bar association should be able to provide you with this information.

DIVORCE STEP-BY-STEP by Gwendolyn J. Sterk, J.D., M.A. Copyright ) 1997 by Gwendolyn J. Sterk. Published by arrangement with Barron's Educational Series, Inc.

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