This issue of Family Advocate is designed to provideadditional support for you as you go through the process of a family law proceeding. The American Bar Association’s Section of Family Law has created it, and it has been given to you to help you make the most of your time with your lawyer. Our goal is to help you understand what you will encounter throughout the process and to offer tips for saving yourself money, time, energy, and additional heartbreak. We hope that by reading this Client Manual, you will become more comfortable, confident, and capable as you work with your lawyer to create the best result possible for your own, unique situation.
As you read the articles, consider the advice of ourexperts. Consult your lawyer and other professionals, including your therapist, accountant, and financial planner. If you have children, consider ways to work with the other parent to help your children through this process. Then think through your options and make the best decisions you can to launch yourself and
your family into a brighter future.
A Lawyer Can Help Protect. You and Your Children..
You are facing the decisions of whether to hire an attorney, and, if do you hire one, how to choose the attorney and how
to pay him or her. It’s understandable that thoughts of representing yourself are running through your head. Try to keep in
mind that going through a divorce can be a very emotional time. Dealing with your spouse, worrying about your children, and
trying to make clear and smart decisions can be overwhelming. Having an attorney at your side will make navigating the
process of divorce a much easier task with better results. It is important to have an objective advisor who knows the law. If
you have children, the decision not to hire a lawyer can affect their financial and emotional stability. An objective advisor
can represent your best interests and the best interests of the children.
What You Don’t Know ….
In the divorce process, what you don’t know can hurt you. Even the process of identifying the assets of the marriage can be complicated. Your spouse’s pension earned during the marriage can be the biggest asset of the marriage and is often overlooked by divorce litigants acting as their own lawyer. After all, the pension is in your spouse’s name and you never worked for that company—right? So obviously you are not entitled to your spouse’s benefits—right? Wrong! In most jurisdictions, that pension is a marital asset to be divided.
Alimony, College Tuition, Parenting
Time, Child Support, Custody
Other things you may not know:
• In alimony jurisdictions, a man can receive alimony if his income is lower than his spouse’s.
• Some jurisdictions do not require the other parent to contribute to children’s higher education expenses or pay support while children attend college unless this requirement is written into the divorce decree.
• The court could give parents equal parenting time. Parenting time affects child support.
• If you have children, shared, joint, and sole custody are legal designations that carry with them legal rights and responsibilities.
When you take the income of one household and split it between two, maintaining both households can become an overwhelming challenge. You may not know, though, that the tax consequences of splitting this income can become quite complicated. The tax consequences of alimony and child support, for example, are very important to understand. Alimony is, for the most part, taxable to the recipient and tax deductible for the payer. Also, if you just take money from a 401(k), it will get taxed and may come with penalties. You can transfer pension assets by something called a “qualified domestic relations order,” or “QDRO,” and that transfer and its tax consequences may be critical for you. The advice and guidance of an attorney will be invaluable in all of these matters.
Inheritances and Gifts
Treatment of inheritances and gifts from parents can be very complex. Even if the assets are not subject to division or “equitable distribution,” as lawyers call it, these assets may significantly affect your ability to support yourself or the
children, and a legal perspective about them will be helpful to you as you move through the divorce process.
Maybe you have decided to mediate your divorce. Remember that mediators are neutral parties. It is not their place to give
legal advice. They are there to assist the parties in reaching a conclusion. Anyone going into mediation should consult with an attorney in advance of the mediation and know their rights and responsibilities. Although mediation is a good way to resolve the issues in your divorce, your lawyer should be used as a consultant in the mediation process. Mediation is often a lower-cost option, but mediation is not to be entered into to “avoid” using lawyers; rather, it is a tool to help you get what you are entitled to receive in a more amicable, and often less expensive, manner.
Attorneys spend three years full-time in law school and are also required to take classes called “continuing legal education” after law school. They appear before the court and know what to say and how to say it. The idea that you could learn all you need to know by reading a few articles on the Internet is not very realistic. Besides, you do not want to risk the future quality of life for yourself or your children because you were ill-prepared. In the divorce process, it is often what you don’t know that affects you. Alimony, child support, equitable distribution, child custody and parenting time, medical insurance, uninsured medical expenses, lifeinsurance—these are all issues to be decided in your divorce. How those issues are resolved can and will affect your future.
How Do I Choose a Lawyer?.
The lawyer’s level of experience is important. Specifically, family law experience is important. Many jurisdictions have
designations such as “Certified Matrimonial Lawyer” or “Family Lawyer.” This certification implies that the attorney
has done a certain volume of cases and has passed a special state examination over and above the state bar exam that
all lawyers take. In the absence of a state designation or if the lawyer you choose is not certified, you can ask the lawyer about the number of cases he or she has done and the complexity of those cases.
Although the Internet should not be your sole resource for choosing a lawyer, sites such as LinkedIn and law firm websites can list elements of an attorney’s experience such as law school attended, time in practice, and practice areas. In many cases, these sites also offer recommendations and comments. The recommendations and comments from friends and family are very important. When you have selected an attorney, you will schedule an initial consultation. This is your opportunity to learn more
about the attorney and his or her practice. Some consultations may be paid and some may be free. Free consultations may
be limited in time and scope. Paid consultations may be longer and more complete. For example, my free consultation
is limited to one half hour. I review child support and alimony calculations and touch on most issues. Because of
time limitations, clients may choose to schedule a followup paid consultation in which I have the time to review
documentation and give more in-depth answers. Some attorneys talk about themselves in free initial consultations
and give pricing for the next step, never actually giving any specific legal advice. That being said, hiring a lawyer is an
investment. If an attorney charges an initial consultation fee, that should not be cause to reject him or her.
Prepare for your interview. Bring your last tax return and documentation of pension plans. Being prepared with a list of your debts, assets, and mortgages helps the attorney understand the issues in your divorce. If there were prior court orders, bring them. Have a list of questions prepared. Understand and articulate your goals. Hire a lawyer that you are comfortable speaking with and one that explains things to you in a way you understand. It is important that you have trust and confidence in your lawyer.
What Am I Hiring a Lawyer to Do?.
Be clear with your lawyer about the scope and limitations of his or her representation. Some states allow limited-scope representation whereby the attorney may only be hired to appear on one aspect of the case or to only render advice
and not represent directly. In other cases, the lawyer is hired for complete divorce representation through the final
judgment of divorce. Even in cases where the lawyer is hired to complete the divorce, the agreement may not include
deed transfers or QDRO preparation to transfer retirement benefits. In most cases, your lawyer will not file an appeal
unless separately retained for that purpose.
How Do I Pay My Lawyer?.
You should be asked to sign a retainer agreement defining the terms of payment. The retainer agreement should specify the
hourly rate for the attorney and any other attorney or office staff who might work on your case, plus responsibility for
costs such as copies or filing fees. Read it carefully. If you are not asked to sign an agreement, I might be hesitant to hire
Retainer agreements require an initial payment and can be flat-fee or hourly. If you will be paying a flat fee, make sure
you know how much the lawyer is doing for the money you are paying. In an hourly agreement, you will be billed for the
time invested in your case. In most cases, this will include all telephone calls, emails, and texts, as well as in-person
conferences and document drafting. Initial retainer fees can be costly. You may need to draw upon savings, credit cards, and friends and family. Read your retainer. Understand what type of costs your case will entail.
How Do I Work with My Lawyer?.
Understand what the lawyer is going to do for the fee charged. If you are to be charged an hourly rate, know that there are ways to decrease your costs. How effectively you work with your attorney can directly impact the cost of hourly representation.
Organize your documents. You can save money by bringing copies of documents to your attorney’s office that are organized, labeled, and in separate files. If a lawyer’s staff has to copy the documents and the lawyer has to organize them, it will cost you more money. When you are given a form to complete, do it as completely as possible. Prepare a budget for your post-divorce life. Review your checkbook ledger and bill statements while you are completing your budget. The more accurate your budget, the better the result you can obtain. You must be honest with your lawyer and disclose all of your assets and liabilities. Get copies of your credit card statements and bank statements so that they do not have to be ordered or requested. Avoid using your lawyer as a therapist. As I said, divorce can be emotional. Your lawyer is not a therapist. Therapists may be covered by your health insurance, and your therapist may be a more appropriate person to talk to about the emotional aspects of divorce. If you have children, they may benefit from therapy. I always recommend therapy for people divorcing from a long-term or abusive marriage. If you try to use your hourly billed attorney as your therapist, your costs will mount. Keep notes on issues that arise. If you are having parenting issues or financial difficulties, list them. Call your attorney about multiple issues at one time. It is often better to call and schedule a brief phone conference with your lawyer at a time when you can have your list in front of you and the attorney can have your file in front of him or her. Unplanned telephone calls can increase costs and also frustration. Be aware that emails and text messages to your lawyer will be billed to you because the response takes lawyer time.
Do not call your attorney with every issue, but know when an emergency situation warrants a call.
Some matters are critical; these would include physical harm to you or your children or involvement of the police or a social
service agency. In these situations, your attorney must be contacted immediately. If, on the other hand, your spouse is
ten minutes late for parenting time, note that and discuss it at a scheduled conference. Let your lawyer’s assistant know if
living arrangements have changed so that that can be recorded in your file. Changes in your budget need to be documented
in writing and submitted in writing.
You have the right to expect monthly bills. You should promptly review the bill and immediately point out any concerns. If you receive a large bill, communicate with your lawyer’s office because payment arrangements may be available. Don’t let the bill get out of hand. Make sure that you have an ethical relationship with your attorney. Your attorney should not be dating you or
hanging out with you during your divorce, particularly if you didn’t know each other before you hired him or her. The attorney should not be your business partner or emotionally invested in the result of your case. You should not lie to your attorney. You need an objective, well-informed attorney.
What Paperwork Will I Need after.
After the divorce is final, review the settlement agreement and/or order. Understand who is going to prepare any
deeds or orders to transfer pensions. Keeping an organized, comprehensive file with all of your information will be very
important. One of the many reasons for keeping a good file is that if you ever want to modify the amount of child or spousal
support you receive, you will need much of your divorce paperwork. In my state of New Jersey, a “Case Information Statement” containing all your financial and other divorcerelated information is required for each divorce case; it must
be attached to any future application to modify support. So retaining your file contents will be key.
Keep in mind that you should expect your lawyer to keep you updated about your divorce by sending you everything he or she receives as developments happen. Keep your file organized. Keep these things in a safe place. You may need them in future proceedings—but the tips provided here will help you minimize costs and obtain the best results possible. A lawyer is not necessary in every divorce case. Many have successfully navigated the divorce process without one.
For those whose marriages have been short (less than six or seven years), without children, and with no real estate
and few other assets, and when neither party is requesting alimony, self-representation may be an acceptable option
because legal forms and procedures for proceeding without a lawyer are obtainable through local bar associations, legal aid organizations, volunteer legal services, and/or online resources. Nevertheless, having an experienced lawyer “in your corner” can often be in your best interest and can even save you time, money, and peace of mind. This is particularly true if your spouse has retained counsel or your divorce is contested, has complicated legal issues or significant assets, and/or involves children.
Your Comfort Level
Your lawyer will be your advocate and counselor— the person who you will need to feel comfortable communicating with about private, personal, and sensitive issues. Whoever you choose must be able to understand you and give you the confidence and trust to know that your best interest is at all times his or her highest priority. The family court judge who will be hearing your case generally understands what you’re going through, likely lives in your community, and often shops in the same grocery
stores as you. So do the lawyers. Selecting a lawyer from your community, one who knows the court and the court staff
and has a good professional relationship with the judge, can only help you.
The Little Things
Choosing the right lawyer for yourself can also help in ways not readily apparent. It can help with the seemingly little things, such as needing an order signed on a Fridayafternoon, scheduling an emergency hearing before a judge or referee whose clerk is already looking at a full court docket, or appearing before a judge after violating a provision of an order. Your lawyer is often viewed by court staff, and sometimes even by the judge, as a reflection of the client. Even though the client may in some instances be undeserving of that recognition, the right lawyer can sometimes provide help with situations such as those just
described, situations that are not well-known to the general public but that can impact a case. The value of such help is
difficult to quantify—but it is significant nonetheless.
Nothing is more important than insuring the ongoing physical and emotional well-being of a child whose parents are going through a divorce. Your lawyer needs to be able.