What should I do to prepare before I see a lawyer?Although you should not delay consulting a lawyer, you should learn as much as you can about your family's finances as soon as possible. Know the monthly and annual costs of running the family home, how much you and your spouse earn, what each of you have in savings, and where those assets are located. Find out what insurance policies, if any, you and your spouse have, and make photocopies of past filed tax returns. Should I hire a private detective?Not before seeing an attorney. In many states, you can be divorced based on irreconcilable differences, so there would be no need to go to the expense of hiring a "private eye" to catch your spouse engaging in extramarital relations. While television and movies glamorize the role of the private detective in divorce actions, the reality is that a divorce is usually more about money and children than infidelity. The notion that a spouse, caught on tape or film, will fold and give away marital assets is misleading. How do I find a lawyer?Friends and family members who have been divorced are often a good source of referrals. When discussing lawyers with friends or family members, be sure to ask about the lawyer who represented the other spouse. Local bar associations, usually listed in the Yellow Pages, often provide the names of lawyers who will see potential matrimonial clients. The American Academy of Matrimonial Lawyers, located in Chicago, publishes a nationwide directory of its members. Members must pass a family law test issued by the Academy, and must have been in practice for at least ten years before they can gain admission to the Academy. The Academy has local branches in major cities throughout the country. Lawyers can also be an excellent referral source, as can judges who hear matrimonial cases. The Yellow Pages may list attorneys who devote their time to matrimonial law. Martindale and Hubble, a private, nationwide directory of attorneys, not only lists lawyers but also provides brief descriptions of their backgrounds. Martindale and Hubble can be found in some libraries and in many law firms. Westlaw, an online service for lawyers, has a directory of attorneys. Finally, clergymen can sometimes be a source of referrals. What is the best way to contact a lawyer?A brief telephone call is the best way to contact a lawyer. Identify yourself, the referral source, briefly describe the problem (I want a divorce, I have a custody problem), and ask for an appointment with the lawyer. Tell the attorney your spouse's name so that the lawyer will know whether he has already met with her, in which case he cannot see you. Be sure to ask if there is a fee for the consultation, and what that fee is. Unless the lawyer asks for information, resist the urge to go into great detail on the phone about the problems you are facing. Save that for the initial consultation. What qualities in a matrimonial attorney are important?As a prerequisite, the attorney must have a demonstrated level of competence in matrimonial law. The attorney need not handle only matrimonial cases, nor need he be well known in the legal community, but he should have handled a sufficient number of cases to be able to conduct yours efficiently and properly. Resist the temptation to use a friend of the family or your business lawyer who has never handled a matrimonial case. Often such lawyers, however well intentioned, must bail out of the case if and when it becomes too complicated, leaving you in the unenviable position of having to find a new lawyer in the middle. Next, and equally important, you must feel at ease with the lawyer. Some men feel more comfortable with a female lawyer, others would not consider anyone but an older, male attorney. Some women only want a female lawyer, while others, however feminist they might otherwise be, feel their husband will only listen to a man. However, do not hire a lawyer solely based upon how you think your spouse will react to that lawyer. First, it is the two lawyers--not your spouse and your lawyer (unless your spouse is not going to hire a lawyer)--who will be dealing with each other, so what your spouse thinks of your lawyer will be irrelevant. Furthermore, your level of comfort is more important than your spouse's level of discomfort. Recognize, too, that hiring a "shark" (a term used for highly aggressive lawyers) in order to impress your spouse is foolish. You are getting divorced. What your spouse thinks--even if you think a certain attorney will scare her into resolving the case--should not play a role in who you select. Rarely do such tactics succeed in any event. Be sure you can afford the lawyer's fees. Ask about fees at the initial consultation, and if the lawyer refuses to discuss them, do not allow yourself to be put off. You would not buy a dress or suit without first knowing its cost. When you hire a lawyer, you must have that information. (See also retainers and fees.) Be sure to know how accessable the lawyer will be. Will your case be too small for a well-known lawyer to devote his time to it? Is there going to be another attorney, more junior, handling the matter as well? If there is, ask to meet that lawyer. Having two attorneys work on your case is not necessarily bad. One attorney, usually an associate who bills at a lower rate than the other attorney, can do a lot of the paper work that a case may generate, while the more expensive attorney can handle negotiations and actual trial work. If two or more attorneys will be working on the case, ask how the work is divided and whether you will be billed for both lawyers when the two are working together. Some law firms will automatically bill you for both attorneys, other firms will only bill you for both when the work requires two lawyers, such as at a complicated trial, and still other firms will only bill at the rate of the more expensive attorney working on your case. You can try to negotiate with the lawyer, if you feel the costs will be prohibitive. What shouldn't I expect from an attorney?Although by its very nature divorce requires you to divulge information to your lawyer even your spouse does not know, your lawyer is not your "buddy," there to offer solace and hear the latest tidbit. In short, while you and your lawyer may be or become friends, her job is to marshal facts into sound legal arguments, not to provide a constant shoulder to cry on. Nor should you expect your lawyer to offer psychological advice. Questions concerning the children's welfare or your emotional state should be addressed to the appropriate mental health expert. Once you have information from that expert, you can present it to your attorney and ask that she try to obtain relief from the court, or from negotiations, in accordance with that advice. Finally, attorneys cannot act as career counselors. For many, divorce means a major change in economic status, and there is a need to begin to take steps to developing a marketable skill. A lawyer can explain how long you can expect to receive support from your spouse, but she can't tell you what field to pursue or how to become more economically independent. Career counselors are available to provide such help.
Every attorney has her own style, but most will, at some point in the consultation (preferably sooner rather than later) listen to your rendition of the problems in the marriage and possibly take notes. After hearing your problems and concerns, the attorney might give you a brief overview of the law of your state, explain the different options available to you, what she can hope to accomplish for you. Be wary of any attorney who guarantees results. The attorney should also describe her professional background and explain her fee structure. If she plans to have another attorney working on your case, the lawyer should bring that other attorney into the meeting at some point. An initial consultation has sometimes been compared to a blind date, but the comparison is not far off base. Did you leave the office feeling confident about the attorney? Did she keep you waiting? Did she take calls during the meeting? Was the office shabby? Lack of attention now, when a lawyer is presumably trying to obtain your business, does not bode well for the future. What should I ask at the initial consultation?To the extent the attorney fails to cover these points, you should ask how the divorce procedure works, how long it will take, how available the lawyer is, how many cases he has tried, how many he has handled (many cases settle without ever going to trial), how much it will cost, how charges are determined, whether you are billed for telephone calls, who else will be working on your case, whether you will have to go to court, what happens if you reconcile, what information the lawyer needs from you. What is a retainer?Many lawyers will not represent you unless you pay a lump sum fee to the lawyer before he begins doing any work. This fee is called a retainer, because, by paying the fee, you have retained that lawyer to work for you. When the attorney works on your case, he subtracts from the retainer his hourly billing rate until the retainer is used up. For example, if you pay a lawyer $2,500 and his billing rate is $100 an hour, your retainer will be used up after 25 hours. Some lawyers will then bill you on a monthly basis for additional work, others will ask you for a new lump sum fee. The arrangements you and your lawyer reach should be in writing, in a document called a "retainer agreement." Be sure you understand each term before you sign the retainer agreement. Know what happens if you can't afford to pay the lawyer after the retainer is used up. In addition to legal services, a lawyer may use the retainer to pay for disbursements, such as photocopies, postage and court fees. In addition, if a court reporter or a process server (a person who, for a fee, presents legal papers to another person) is needed in your case, the lawyer may use the retainer to pay for those services or he may ask you to pay them directly to the provider of services. Be sure that is spelled out in the retainer agreement as well. Even though both sums will eventually be paid by you, the source of the funds may affect your cash flow. Doesn't my spouse have to pay my fees?The answer varies according to state law and the judge assigned to your case, but in general, unless your spouse is wealthy and you have limited assets available to you, you should not hire a lawyer assuming your spouse will be responsible for your fees. Even if your spouse can afford to do so, a judge may decide your lawyer "over litigated" the case, and not award her all the fees she seeks from your spouse. The lawyer may still look to you for the balance due. If the lawyer is willing to look only to your spouse for fees, be sure that is stated in the retainer agreement and that you will not be responsible for the difference between the lawyer's fees and what she actually collects from your spouse. Won't the lawyer wait until the case is over to be paid?Few lawyers are willing to wait until a case is over to be paid, but, depending on your circumstances, you may find one who will. This should be set out in the retainer agreement. What if I pay a retainer and then change my mind?A reputable attorney will return the retainer to you, deducting any charges already incurred, such as the time spent on the initial consultation. If the lawyer refuses to return the unused balance of the funds, contact your local bar association to find out your remedies. How much could a retainer be?The amount of a retainer can vary depending on where you live, the lawyer you hire and the status of your case. For example, a person living in Manhattan retaining an attorney to take over a litigated custody case may pay as much as $25,000. In a small community, the fee could be much less. There should be a correlation between the amount of work needed to be done in the case, the lawyer's years of experience, the relief you seek and the retainer fee. Do all lawyers charge retainers?Most do. Some may be willing to bill you on a monthly basis. Contingency fees, where the lawyer takes a percentage of what you receive in the case, are generally considered unethical in matrimonial cases because the lawyer should not have an economic interest in the outcome of the case. Be wary of any lawyer who offers to represent you for a percentage of what you receive from your spouse. If lawyers bill by the amount of hours they work, isn't it to their advantage to drag the case out for as long as possible?Reputable attorneys will not "churn" a case--ie, drag it out so as to generate fees. However, you can ask, when you receive the written retainer agreement, that the attorney include a provision stating that, except in the case of an emergency, he will consult with you before taking steps in the case, and will use his best efforts to give you an estimate of the amount of time taking such steps will cost. That way, you will have an idea of what the planned course of action will cost. What happens if I cannot afford a lawyer?Every state is different, but with legal services being cut, many do not provide Legal Aid for divorces. An attorney may be willing to take your case and seek payment from your spouse, either at the end of the case (though it is unlikely she will wait that long) or at the beginning of the case by making an immediate application to the court for temporary legal fees. You may have to postpone your divorce while you save for legal services. Or, if there are no issues between you and your spouse, you may be able to submit the papers necessary to obtain a divorce to the court yourself. How can I minimize my costs?If your attorney bills for phone calls, and most do, make a list of your questions before you call, so that you do not spend time on the phone discussing extraneous matters, or need to call back. Some attorneys charge a minimum fee of fifteen minutes for every call they take, under the theory that the call has interrupted other work, and they need time to get back "on track" once your call is over. Ask about such practices before you hire your attorney and, if possible, ask that you only be billed for time actually spent on the phone. A minimum charge of five minutes might be reasonable. Keep track, to the extent possible, of the amount of time you meet with your lawyer and speak to him on the phone. Lawyers can make mistakes about how much they bill you, and it is useful to have a record. Ask that the attorney, except in the case of an emergency, consult with you before taking any steps in your case, and provide you with an estimate of the time such step will take, if possible, so that if you do not think it is cost productive, you can tell him. For example, an attorney may believe it is in your best interests to make an application to the court asking a judge to order your spouse to pay you temporary support. You believe your spouse would respond better to a meeting where the request can be made. By asking your attorney to first hold a meeting, you may end up saving thousands of dollars in legal fees and achieve the same result. Remember, your attorney knows the law but you know your spouse, and your input with regard to her behavior can save you money. If time permits, write your attorney about matters to the extent possible. For example, if your spouse is not paying bills she is responsible to pay, you'll save time, and money, if you send your attorney a list of the bills with copies rather than calling him and spending time listing the bills over the phone while he writes them down. At any point in the case, but preferably at the outset, ask if there is a junior attorney who can assist on the case at a lower billing rate for routine matters, such as drafting papers (which your other attorney will still review), court appearances where no substantive points are going to be addressed (such as when papers are merely going to submitted to the judge) and any other routine matters. Associates can also take your phone calls, at a lower billing rate, and then convey information to the other attorney. Be sure to ask, however, whether you will be billed for both attorneys' time when they are both working on your case. If it is the case that you will be doubled billed, you may lose your savings in the double billing. Some firms will bill you for both attorneys, others will bill you for both only when the work to be done requires two lawyers, and others will only bill you at the rate of the more expensive attorney when two lawyers are working on your case. Before you ask for another lawyer to assist on the case, find out the firm's billing policy. What is the best way to interact with my attorney?Hopefully, you have found an attorney with whom you are comfortable, and can act naturally and feel free to question and disagree with. While some attorneys will leave final decisions concerning the law up to you (such as whether to go to trial or settle), others may state that when it comes to making a final decision, she will make it. Ask about such policies before you retain an attorney, and be sure the policy is one with which you are comfortable. Some clients do not want to have to make any important decisions while they are going through a divorce, others could not conceive of not calling the shots on critical matters.
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