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Questions You Should Ask Your Divorce Lawyer

 

Thanks to attorney Michael Sherman formerly of the Alabama Family Law Blog for questions to ask your divorce lawyer. I’ve added my comments in italics.

Picking the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, smart, and who regularly handles family law and divorce cases. You want someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends, family, and coworkers, but in the end, trust your own judgment and instincts.

If you do not like the lawyer when you meet him or her, trust your instincts, you need to find someone who matches your style and needs well. You are not doing anyone any favors if you cannot stand your attorney or want their personality to be different than it already is.

Call to schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. Your divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

Many potential clients want to know if we offer a free consultation. Nope. My staff and I have no problem answering questions about my background, my philosophy, what types of cases do I handle, etc. but a “meet and greet” type meeting always turns into “my situation is this? what should I do?” I need the time to sit down with a potential client and talk about their case. My time and the potential client’s time is valuable.

During the initial consultation with the potential lawyer, you may consider asking her the following questions:

Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 50%-75% of their practice, go elsewhere.

I agree with this. Family law is such a weird and complicated type of law. I do not believe that clients serve themselves well to go to an attorney who is a generalist rather than someone who primarily handles family law cases.

What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask.

Do not forget to ask what happens if you have a problem or question about your bill? Do you get billed for that too?

What other costs can I expect? In addition to lawyer’s fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them.

Understand the typical filing fees, how much a transcript of a Hearing might cost and how much a typical process server costs.

Will you send me monthly itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your trust account balance. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later.

Your attorney should be sending you bills each and every month. You should also understand what the bill says. We have gone through two software programs trying to get a billing system that works well.

Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have.

What websites, brochures, or Court forms can you look at or use to reduce your fees?

Who else will be working on my case? Other lawyers, paralegals, and/or staff members will often perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for less experienced attorneys and/or paralegals should be lower than that of the primary attorney on the case.

I try to introduce clients to my paralegal and our receptionist so they know who they are talking to.

What efforts will you make to try to settle my case? The vast majority of divorce cases settle. Some are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Others settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse’s lawyer (if he or she has one), to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about mediation. Mediation is becoming more prevalent in divorce cases. If you think that it may be helpful in your case, you should ask the lawyer to explain the costs and benefits associated with mediation.

Make sure that you talk to your attorney about what settlement measures you are interested in and what they suggest.

What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer’s office to do it.

I wish that clients would do this more. It is so cost inefficient for my staff and I to be running around the city trying to get documents when the client can arrange to order the documents or gather them.

Do you survey your clients to measure their satisfaction? You should not let a negative answer to this question preclude your allowing the lawyer to represent you. Because so few lawyers actually do survey their clients, there are many very good competent lawyers who do not do this. However, all other factors being equal, a lawyer that surveys their clients to determine their satisfaction, is likely to render better service to their clients as they are more at tuned to their feedback.

Any business will tell you that surveying customers can be revealing and sometimes not pretty.  We have surveyed our clients regarding their satisfaction with our office and our services.  We got positive feedback but we have made some small tweaks based upon recommendations from clients.

As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

  • Explain the legal issues involved in your case and the possible outcomes under your fact situation.
  • Clearly explain their billing arrangement.
  • Copy you with all documents related to your case.
  • Provide you with accurate bills on a periodic basis.
  • Return your phone calls within a reasonable period of time (usually 24-48 hours) (the lawyer may be involved in a trial and be in Court for several days, but he or she should at least make arrangements to have someone from the office call you if they are unavailable).
  • Make efforts to settle your case on terms that are fair to you and once it is determined that the case will not settle, competently and vigorously prepare your case and you for trial.

Once you have found a good lawyer, remember that the lawyer works for you.  Do not be intimidated by them.  Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as their recommendations. However, in the end, you are the one who makes the decisions. Ultimately, if you are not satisfied with the lawyer, remember that you have the absolute right to terminate your relationship with the lawyer at any time, for any reason. Be careful in doing so, however, if you have a Court date looming. This can cause unnecessary delays or, worse, result in you having to proceed without proper representation.

It is true that terminating a relationship with your lawyer just before a big trial or Hearing can seriously jeopardize your case.  If you have concerns, talk to your lawyer about them or if you feel like you cannot — maybe you should look for a new lawyer –just not right before a big trial or Hearing.

 

How do you win in a divorce?

As Parties begin the litigation, each Party expects to “win” in the divorce process, and expects the other Party to “lose.”  As a practical matter, is there any possibility of “winning” in a divorce? “Winning” might be defined as a marriage that worked out — by the time divorcing clients reach us, it is normally too late for that.  In the dissolution process, we are often dealing more with “damage control” than winning.

In a typical civil case, there is a Plaintiff (one who sues) and a Defendant (one who defends).  One Party receives a verdict from the Court or a jury (a judgment).  This is also true in criminal cases.  In a criminal case, it is the State (or the District Attorney) versus the Defendant.  The Court or the jury finds the Defendant guilty or not guilty.  In a family law case, there is a Petitioner (one who files the Petition) and a Co-Petitioner (if the Parties file together) or Respondent (if one Party is served with the papers).

Although a family law case is a civil matter heard in the District Court, whether a Party wins or loses is not as easy to determine.  This is in part because family law cases are usually complex and have many issues (parenting time with children, division of property, how to divide debts, etc.).

What is a Win? “Win” is defined as: 1. to achieve victory or finish first in a competition, and 2. to achieve success in an effort or venture.  In most cases, divorce is not about finishing first in a competition since divorce is not a race.  The Courts in Colorado do not reward the first person to file for divorce.  There is virtually no benefit in filing first except surprise and that you will have to pay your attorney to draft certain things first.  The one who files first (the Petitioner) may also have more control over the language in the first draft.

Can I Win?
“Can I win?” is one question clients always want to know.  I ask clients (1) what would you be thrilled to get in Court?  (2) what would you be satisfied with?  (3) what result would be totally unacceptable?  The point is to get clients to think about what equals success to them.  Of course, everyone would like to have all of their proposals and requests agreed to by the Court.  The reality is that virtually no divorce case is a straight up or down win.  Whether the Parties are negotiating an agreement or the Court is entering an order, the issues are a series of interlocking pieces with multiple parts.  So you might get the specific parenting time schedule you would like but other terms regarding the children are not ones you would have chosen.  .

What Does Winning Mean to You?
It is also important to understand what winning means to you and what winning means to your attorney.  Personally, I want the Court to agree with every argument I make and every fact I try to establish.  Ridiculous, I know, but I cannot stand losing anything.  As an attorney and a litigator, I want to make the strongest argument to the Court and get the best result for my client.

You Work Hard for Your Money

You work hard for your money. Then you have problems with your spouse or partner. You wonder whether all your hard work was for nothing or is going to benefit the soon to be ex.

1. Know what you have. You need to be aware of what assets you’ve got. Consider making copies of every financial statement and document you can find. Any tax return, bank or retirement account, credit card statement, or estate planning document may be helpful. Clients are always surprised when these papers mysteriously disappear. If you need to have your lawyer track down the information, it can get very expensive and time consuming. Figure out whose name or names are on the real estate, vehicles, loans, and credit cards.

2. Prepare for the cost of your attorney. Lawyers charge anywhere from $175 to $350 per hour. Your attorney may bill you for every minute of their time, including phone calls or the cost of tracking down information. You can reduce these costs by preparing as much information as you can. I really appreciate it when clients come prepared and want to get involved in gathering information. Remember that when it comes to your family and your family’s facts, you are the expert.

3. Make a budget. You will need to figure out how to allocate money during this difficult time. Most clients are transitioning from a two adult household to one adult in each household. In addition, Courts in Colorado require that you prepare a Sworn Financial Statement. For your Financial Statement, you will need to know what income you are earning, what deductions are being taken out of your paycheck, what your expenses are, and what your assets and debts are.

4. Begin to plan for your new life. If you are earning a paycheck and it is directly deposited into a bank account that you and your spouse or partner share, you may want to open a separate account in your own name and have the funds deposited there instead. Just because the funds are in an account with only your name does not magically transform the funds into property that you automatically keep. But the money will be there when you need it and you probably will. Several times I have seen one of the Parties tap into a joint checking account and clean it out, leaving the other Party without any funds. Another solution is to direct your bank to freeze your joint accounts so that both signatures are required for any withdrawals. You may also want to consider closing a home equity line of credit or open margin account with your brokerage account. If your spouse abuses the line of credit or borrows against the joint brokerage account to buy investments, it makes the finances more complicated and more risky for you.

5. Watch your credit. The Fair and Accurate Credit Transaction Act of 2003 (FACTA) added sections to the federal laws to help consumers fight identity fraud. Under these laws, consumers can request and obtain a free credit report once every 12 months from each of the three nationwide consumer credit reporting companies (Equifax, Experian, and TransUnion). The official website that was established is www.annualcreditreport.com. Colorado residents are also entitled to a free annual credit report from each credit reporting agency. So Colorado residents can get a free report from each bureau annually under federal law and an additional free report under Colorado law. You want to figure out what debt is out there in your name and jointly with your spouse or partner. Since the credit reporting agencies maintain individual credit files for each U.S. resident and have not combined files for spouses, you will only be able to obtain your own credit report, which includes any joint credit accounts. Talk to your attorney about closing open active accounts and open inactive accounts.

6. Talk taxes. Many aspects of divorce and dividing property involve tax issues. Maintenance or alimony is tax deductible by the payor (one who pays) and is taxable income to the payee (one who is paid). The Internal Revenue Service (IRS) does not consider voluntary payments of alimony or maintenance to be true “alimony.” The payments must be in cash or a form of cash (check, money order). Transfer of services or use of property does not qualify as alimony. Child support payments are neither deductible by the payer nor taxable to the payee. Also consider whether you are receiving in the divorce an asset that will have appreciated. Remember when you sell an appreciated asset, you pay capital gains tax on the increase. So you will pay capital gains tax based on the value of the asset when it was purchased jointly (during the marriage) not when you received the property in the divorce. So an asset that has appreciated may be worth less in the long run than cash or an asset that has not appreciated.

There is no recognized gain or loss on the transfer of property between spouses if the property transfer is because of a divorce. If the property transfer occurs within one year after the date that your marriage ends and is related to the end of your marriage, then the IRS considers the transfer “incident” to your divorce. The IRS considers that the property transfer is “related” to the ending of your marriage if the transfer is part of your divorce or separation agreement and occurs within 6 years of when your marriage ends. If you are outside the 6 years after your marriage ends, you need to talk to your tax professional because in certain circumstances, the property transfer may be related to the ending of the marriage.

7. Secure your future. Consider whether your separation agreement or Court Orders should include having your ex-spouse carry life insurance for the benefit of the children or to cover future maintenance payments. You will also need to change your beneficiaries on your own life insurance policies, retirement accounts, and revise your will. You may be entitled to a portion of any retirement benefits earned by your spouse during your marriage. You may need a Qualified Domestic Relations Order (QDRO) (called a Court Order Acceptable for Processing (COAP) for federal government plans) to accomplish the division of the retirement benefits or pension. If you were married for at least ten years and do not remarry, when you reach retirement age, you may qualify for Social Security benefits based on your ex-spouse’s lifetime earnings, even if your former spouse has remarried or has not yet retired.

Do I need a Child and Family Investigator?

If there are disputed issues regarding children, under Colorado law, §14-10-116.5, C.R.S., the Court may appoint a Child and Family Investigator (CFI) to investigate, report, and make recommendations to the Court.  Either Party may ask for a CFI or the Court may appoint a CFI if the Court believes one is needed.

The CFI may be an attorney, a mental health professional, or any other individual whom the Court believes is able to fill this role.  Most CFIs are either attorneys or mental health professionals.  All CFIs are required to have special training regarding the investigation of a custody case and are bound by various rules (Chief Justice Directives) issued by the Colorado Supreme Court.  See, for example, Chief Justice Directive 04-08.

A CFI can investigate any or all issues in a custody case.  These issues may include primary residence, parenting time, decision-making, allegations of endangerment/child abuse, and relocation.  The CFI’s duties are to investigate the current situation, including meeting with the child(ren), to file a report with the Court, and to testify, if necessary concerning his or her investigation.   The CFI Report is intended to be brief and focused.  A CFI Report can usually be completed in 2-3 months.  Once the investigation is complete, the CFI will submit their report to the Court.  The recommendations of the CFI are not orders of the Court — the recommendations are considered just like any other evidence presented by a Party.  However, oftentimes, the Court does follow the CFI’s recommendations or uses them as a guide for their orders.

As of 2016, in the State of Colorado, the Colorado Supreme Court set a $2,750 cap on the  overall fee for a CFI unless there are extreme circumstances.  Larimer County uses a $2,000 cap for CFIs.  The primary reason for the cap is to provide for a predictable fee for the CFI report and avoid situations where the CFI report becomes unaffordable for Parties.  The cost for the CFI is usually split between the Parties and indigent Parties may request that the State of Colorado pay for their portion if they qualify.  Not all CFIs accept state pay cases.  Some CFIs also offer a reduced fee basis.

There are 22 Judicial Districts in Colorado.  A list of the CFIs approved by each Judicial District may be available through each District Court.

Rice Law Office can assist you in preparing for a CFI report, providing you with information about a specific CFI’s procedures, how to gather important  information and provide collaterals to help the CFI understand the issues.

What is Early Neutral Assessment (ENA) or Early Neutral Evaluation (ENE)?

Early Neutral Assessment (ENA) is a voluntary, informal, alternative dispute resolution process that was first developed by the Hennepin County Family Court program in Minneapolis. It was initiated to allow parents to remain in control of major decisions about their family, while lowering the conflict that is so harmful to the children. ENA typically only addresses issues related to the children (i.e. parenting time and decision-making). Some Counties use ENA for relocation cases and other Counties do not believe that ENA should be used for relocation cases.  Although ENA is usually used for pre-decree divorce cases, it may be used in a post-decree (after divorce) case.  The idea is to give the parents and idea of what the Court might do in their case and try to resolve the case outside of Court.

ENA is usually facilitated by a team of an attorney and a mental health professional. As of July 2013, we have two ENA teams in Larimer County, Robert Calhoun, Ph.D. and Celeste Holder Kling, J.D. or Kathleen McNamara, Ph.D. and Robert Smith, J.D.  Our ENA team members are very experienced attorneys or psychologists who have done numerous Child and Family Investigations (CFI) and/or Parental Responsibility Evaluation (PRE) reports and served as expert witnesses in family law cases.

As of July 2013, in Larimer County, the cost for the ENA session is $400 per person (more expensive than mediation with the Office of Dispute Resolution but cheaper than a CFI). Here is a typical example of the ENA process.  After the ENA team gives a brief overview of the process, each parent talks about their view of the situation, the other parent can briefly respond, and the attorneys, if any, can add any legal issues that were missed. After the ENA team asks any clarifying questions, the ENA team takes a brief break to talk separately about what they think the Court might do if the matter was litigated and then gives the parents their thoughts. The Court is available to answer questions or to put agreements on the record.

A video about the ENA process describes how the 17th Judicial District (Adams and Broomfield Counties) established an Early Neutral Assessment Program to help divorcing couples make their own decisions regarding child custody and developing their own parenting plan.