General Information About Divorce
Section 1 – What Is This Document?
A vast amount of misinformation is available from a multitude of sources, particularly the internet, concerning divorce. This document is an effort to provide you with factual information regarding that subject and thereby de-mystify the process.
This memo is intended to convey only basic divorce information. It is not a substitute for detailed discussions with an attorney concerning your particular case. Hopefully, it will provide you with an adequate factual foundation to evaluate your situation and evaluate your alternatives.
Section 2 – Decision to Divorce
Before filing a divorce suit, you should be absolutely sure that your marriage is beyond salvage. Whether you deem it necessary to pursue a divorce is an entirely personal decision and one that ONLY you can make. If you determine that a marriage relationship cannot be salvaged, then pursuit of a divorce is the appropriate alternative.
On the other hand, if you are uncertain whether a divorce is necessary, then filing suit is premature. Initiating a divorce suit is expensive because experienced attorneys will request that you pay a retainer and at least a portion of that sum will not be refunded if you change your mind after the suit is filed. Hostility rises and communication diminishes with the filing of a divorce case and those factors usually make reconciliation more difficult. Therefore, if you have doubt about the course to pursue, you should encourage your spouse to participate in marital counseling and put forth every reasonable effort to save the marriage relationship before hiring a lawyer to file a divorce case.
Section 3 – Helpful Advice
Once family, friends, or work associates learn that you are considering a divorce, you will be inundated with “helpful advice”. You will hear advice that ranges from “walk away from it” to “don’t give the sorry SOB anything” and every nuance of every theme remotely related to divorce. If you endeavor to take the advice to heart and follow it – YOU WILL GO CRAZY.
The problem, from your perspective, is one of how to sort the good advice from the bad advice. There is a simple answer to that quandary. All of the advice is WRONG. That sounds as if it must be an over-generalization but it is not and upon reflection you will understand why the conclusion is true.
Your marriage relationship is one of two unique personalities (you and your spouse) joined in a unique physical, emotional and psychological relationship (the marriage) while dealing with the unique aspects of your financial situation and all of the unique relationships between yourselves, families, work associates, etc.. The bottom line is – your marriage and the difficulties that led to thoughts of divorce are unlike any other set of marriage or divorce circumstances. Your marriage is one of a kind and the issues related to your divorce are one of a kind.
Advice from other people is based upon their experiences (particularly those related to their marriages and divorces) or experiences recited to them by people who are even another step removed from you. All of that information is derived from other unique relationships. Because the advice is founded upon facts and circumstances that must be different than yours, common sense tells you that the advice simply cannot be applicable to your situation.
One size does NOT fit all in terms of divorce. Each divorce is different and must be handled differently. “Helpful advice” is just not helpful. Having reached that conclusion, the problem, from your perspective, becomes one of how to deal with the people who proffer the advice while simultaneously maintaining your grasp upon reality and your emotional stability.
Of course, there are people who are sincerely interested in your welfare and who want your divorce experience to result in as little emotional and psychological damage as possible. Those are the folks you will need around you for help if the going gets tough. On the other hand, there are people who offer advice for other reasons – perhaps a result of an ego problem (a need to appear knowledgeable about all subjects), perhaps for the sake of gossip material, perhaps for the purpose of maintaining a social relationship, perhaps for personal gain. The worst source of information imaginable is the person who characterizes himself/herself as the “victim” of a terrible divorce. All of those are the folks that you need to remove from your day to day life during the divorce.
In a legal sense, your divorce is a matter that should be handled entirely by you, your lawyer and those other experts necessary to extricate you from the legal aspects of the marriage relationship. In an emotional and psychological sense, your stability while experiencing the trauma of the divorce should be handled entirely by you, a counselor and those to whom you turn for spiritual guidance. That being the case, it will serve you well to tell those who offer “helpful advice” that you have made an agreement to discuss the details of the divorce and its effects upon you only with your lawyer and your counselor.
Those who are genuine friends will honor your request. They will make themselves available to enjoy a social outing with you, to offer you support and provide you with assurance that the world is not altogether out of control. Those who do not comply with your request and persist in pushing “helpful advice” in your direction should be avoided. They will make your divorce experience extremely difficult, and, in the worst of cases, add to the destruction.
Section 4 – Assistance of a Counselor
Emotional instability is generally a side-effect of the divorce process. You should expect your psychological balance to be adversely affected and be prepared to deal with it in an appropriate fashion. If your emotional imbalance begins to get the better of you, please employ a psychologist or consult with other trained counselors. It will prove to be time and money well spent.
Divorce counseling is valuable for some people. Programs specifically intended to assist people in dealing with the emotional trauma of divorce are available through churches and professional counselors. Similar programs exist to meet the needs of children whose parents are involved in divorce. Counseling of this nature is valuable because it provides a road map for understanding where you are emotionally during the various stages of the divorce process and how to move along the path toward a psychologically healthy emergence from the process.
Section 5 – Frequently Asked Questions
Even though each divorce case is different, there are some questions that are voiced in virtually all of them. The following is a list of those inquiries and generalized responses that are intended to provide you with some guidelines for application to your case.
How Quickly Can I Get This Divorce Over?
Sixty days is the minimum because Texas has a mandatory waiting period of that length. As a practical matter, that timeframe is seldom realistic.
Divorce is a process – not an event. After having made the decision to pursue a divorce, it is natural to want the matter wrapped up promptly. It will not proceed quickly enough to suit you. It will simply take as long as is necessary for your spouse to accept the realities of divorce and focus upon resolving the issues that are part of the process.
Will Filing Suit Bring Him/Her to His/Her Senses?
Generally not. Some people hope that filing a divorce suit will shock his/her spouse into reality and thereby save the marriage. Although filing for a divorce sometimes saves the marriage, it rarely works out that way. Usually, it causes the other spouse to become more hostile and defensive. Therefore, the divorce should be filed with the realization that you are asking for a divorce and, barring very unusual circumstances, a divorce is what you will receive.
How Much Will This Cost?
That is a reasonable question for which there is no definitive answer. There are a number of factors that affect the cost of litigation and many of them are beyond your control and that of your lawyer. Therefore, it is virtually impossible for an attorney to accurately predict the cost of the suit, particularly in the early stages of the litigation process.
An ethical lawyer will conscientiously handle the suit without the unnecessary escalation of the client’s costs.
There is more detailed information about this subject in Section 8 of this document.
What Are “Standing Orders”?
The courts in several counties have adopted “standing orders” that are applicable to all divorce suits the moment the case is filed. The orders which are applicable to both parties state that no one is to upset the status quo, either financially or with respect to the children. The orders are intended to prevent a mischievous party from: a) hiding the kids or b) spending money for frivolous purposes. It is OK to pay for ongoing living expenses, regular business expenses and expenses related to the divorce.
How Do I Get A “Legal Separation”?
There is no such thing in Texas. Other states recognize various forms of “separation”, however, that is not a legal status in this state. There may be temporary orders entered by the court, but they do not constitute a legal separation of the types recognized in other states.
What Effect Will The Spouse’s Adultery Have On The Case?
Generally, not much. Adultery is a “fault” basis for divorce in Texas, but the focus of the courts has changed significantly since the advent of “no fault” grounds for divorce in this state.
The attitude of our society in general has become more tolerant of transgressions that, some years ago, would have been considered very serious in nature. Further, the judges who hear family law matters have been exposed to tales involving the most bizarre varieties of misbehavior and, to some degree, are beyond the point of being shocked by violations of marital vows. It is common that the deterioration of one close personal relationship is accompanied by the growth of another relationship and the family court judges recognize that fact. Therefore, the existence of adultery, in and of itself, is no longer a significant issue in most instances.
On the other hand, adultery may be a matter of importance if the circumstances related to the transgression are significant. For example, the expenditure of marital funds for the purpose of pursuing the adulterous affair will catch the court’s attention. Likewise, flaunting the affair in front of the children will draw the ire of the judge. Under such circumstances, the “damage” suffered as a result of the adulterous conduct may result in action by the court, whereas similar misconduct without consequential “damage” may be of little concern to the judge.
Can I Throw My Spouse Out Of The House?
Yes and no. If your spouse agrees to move out, then the problem will solve itself. If that is not the case, then you may need to resort to other measures.
Unless there has been violence or a serious threat of violence in the relationship, the judge cannot exclude either spouse from the home without a hearing. After a temporary hearing, the judge will usually order that one party is to have the exclusive use of the residence and order the other party to move out.
Can I Change The Locks (Garage Door Opener Code) On The House?
Yes, but you should carefully consider your options and your potential courses of action before making such a decision. Obviously, the realization that one’s key or garage door opener no longer works will create frustration and, possibly, rage. Your ultimate objectives should guide your behavior rather than a desire for short term relief from a difficult relationship.
Many attorneys will advise their clients to change the locks, alter the garage door opener, and change the alarm system code in conjunction with the filing of a divorce suit. If the party who has initiated the divorce case fears that his/her spouse will return to the residence for the purpose of creating havoc, causing injury or other malicious purpose, the exclusion of that person from the house may be an appropriate method to thwart the misbehavior.
Can I Just Throw Out My Spouse’s Stuff?
No, that is counterproductive behavior. Engaging in such misconduct will enrage your spouse, result in the unnecessary expenditure of funds to replace the lost items, and probably irritate the judge. None of those consequences will be beneficial.
It is appropriate to gather up your spouse’s clothing and personal effects so that they can be picked up. They should be appropriately packed and made available as soon as practical.
Can I Open My Spouse’s Mail?
No. If you receive any mail addressed solely to your spouse, it should be forwarded to him/her by you or through your attorney.
I Think My Spouse Is Hiding Assets – How Do I Find Them?
It is possible for a spouse to hide assets. However, most people do not have the means, the time or the dedication to do so. In today’s world, there is a paper trail created by virtually every financial transaction. That being the case, it is generally possible to figure out what money has come into a spouse’s hands and where it has gone.
Generally everything will be disclosed pursuant to a court order for both parties to prepare sworn inventories of assets and liabilities. The formal discovery process also allows the lawyers to make inquiries, request documents and otherwise pursue avenues to determine what properties and debts exist.
To double check, apply the IRS’ “standard of living” audit to your financial facts. Your lawyer can tell you how to do it.
Should I Close Bank Accounts?
If you have been served with a Temporary Restraining Order or a subject to Standing Orders, you are probably prohibited from closing accounts. If you are not under such orders, you are free to close the accounts. However, you should consider the possible consequences. Closing an account without notice to your spouse may cause unnecessary embarrassment, increase the hostility level and foster mistrust. Further, it may cause checks to bounce and create difficulties with creditors.
If you believe your spouse is likely to spend or hide money from an account, it may be wise to place the funds beyond your spouse’s reach and preserve them. If you do so, you should leave sufficient funds in the account to cover any outstanding checks and, possibly, a reasonable sum for your spouse’s use. Whenever you take unilateral action that alters the financial status quo, you must be prepared to offer a reasonable explanation to the court for your actions and be able to account for how the money had been handled.
Should I Cut Off The Credit Cards?
The answer is similar to the prior one. A Temporary Restraining Order or Standing Orders will usually preclude a party from altering the status of the credit card accounts. If there is no such order in effect, you have the option of closing the accounts. However, close consideration should be given to the results of such action.
If it is unlikely that your spouse will misuse the line of credit available, closing the account would be unwise. Embarrassment over the rejection of a credit card can well lead to hostility and desperate action. On the other hand, if your spouse has evidenced a prior propensity to abuse the credit cards, cutting off the account will serve to limit the potential damage such misbehavior can create. Generally, the credit card firms will require that the account be completely closed (i.e., neither spouse will be able to charge to the account) and a new account be opened in the name of one party only. Any existing balance on the old account will be transferred to the new account.
Whenever you take unilateral action that alters the financial status quo, you must be prepared to offer a reasonable explanation to the court for your actions.
Can I Record Telephone Conversations?
Wiretapping is a felony and can subject you to criminal prosecution. However, it is lawful to record a conversation if you are a party to the conversation. Therefore, you are not to “tap” conversations in which you do not participate, but you may record conversations between yourself and another person.
Can I Read My Spouse’s E-mail?
Maybe. The dawning of the computer age has carried with it a number of state and federal statutes aimed at preserving privacy with respect to electronic transactions. Some of the federal statutes make it a criminal offense to intercept or tamper with computer generated information. Technically, intercepting e-mail is a violation of those statutes. On the other hand, information that is stored on the hard disk of the “family” computer is generally fair game for anyone who ordinarily has access to it.
Should I Have My Spouse Followed? If I Do, What Then?
It depends on what you hope to gain from the information to be gathered. Investigators are expensive and they will expect to be paid whether their reports are helpful or not. The decision should be made by weighing the cost against the potential benefit.
If you do hire an investigator, keep it to yourself. The advantage of securing information without the other party’s knowledge lies in how that information is utilized. The premature release of the information will allow a dishonest person an opportunity to manufacture an explanation or excuse. On the other hand, if the dishonest person believes he/she is safe in misrepresenting the facts (i.e., lying during a hearing or in response to discovery requests), then the impact of the information can be devastating. It is important to give the other party an opportunity to choose between truth and prevarication, then determine what action should be taken.
Does Joint Custody Mean Equal Possession Time Of The Child?
No. In Texas, the terminology of the statue is “joint managing conservatorship”, but most people tend to use “joint custody” in reference to some type of sharing responsibility between parents. Generally, the “joint custody” term evokes images of the parents having equal possession times. That is not the case in Texas.
The Texas Family Code states that parents should be appointed as joint managing conservators of a child, unless there are good reasons not to do so. However, the statutes also provide that a “joint custody” order does not carry with it an equal division of the child’s time.
The significance of “conservatorship” lies in the power to make decisions on behalf of the child. Although the Texas Family Code lists a number of powers allocated to a managing conservator, the most important areas of decision making authority are related to: 1) selection of the child’s place of residence, 2) selection of the child’s educational institutions, and 3) selection of the persons to provide health care for the child. Who controls those powers is usually the question at the bottom of the child related issues in the divorce.
From the judge’s perspective, possession time allocated to the parents is a separate issue. As a general rule, history will provide the judge with guidance concerning which parent should have primary possession of the child.
If I Don’t Work, Will He Have To Pay More Child Support Or Alimony?
No. That is a self-defeating approach to the problems at hand.
Early in the divorce, the judge will analyze the cash flow vs. ongoing expenses of both parties and fashion an order that (hopefully) gives each party enough money to pay for his/her budget items. If one party is earning money and the other one is not, the earning party will be required to shoulder most of the financial load at that point in time. However, the courts will generally NOT require one spouse to pay for the other’s expenses on an indefinite basis.
The divorce process places a financial strain on everyone and extra cash flow is virtually a necessity. Further, the divorce process provides a certain level of shelter within which a spouse can go back to school and pursue employment opportunities while the marital estate pays the tab. Since economic necessity will require most litigants to work after the divorce has been completed, it makes sense to spend the time and community property resources to move toward meaningful employment while the divorce is pending.
Section 6 – Why Are Divorce Cases Different?
Divorce cases are unlike any other forms of civil litigation for a number of reasons, including:
- The suit is charged with emotion, sometimes extreme emotion.
- Divorces require a working knowledge of many different areas of the law.
- Judges have much broader discretion than they do in most other types of cases.
- There is virtually never a clear-cut “winner” or “loser”.
- Both parties are usually asking for the same thing – a “fair” division of the marital estate and orders that are in the “best interest of the children”. However, they often have very different thoughts about what those terms mean.
- The funds spent in the litigation process come from the marital estate and thereby diminish the “prize” over which the parties wage combat.
- Each spouse feels a need to be vindicated.
- Each party feels a need to “set the record straight” about the other spouse.
- Both parties assume friends will always take sides and, therefore, they must be divided up in a process similar to dividing the property.
- There are multitudes of false expectations, including:
- The lawyers and/or the court will solve the financial problems,
- The lawyers and/or the court will resolve the psychological difficulties,
- The lawyers and/or the court will, in general, “set things right”.
- Emotional and psychological trauma is a virtual certainty.
- Persons offering “helpful advice” appear in droves.
In summary, a divorce suit involves a difficult and draining process. Your attorney will guide you along the legal avenues of the lawsuit. However, only you are capable of charting your emotional and psychological course through the litigation and you have the responsibility for doing so.
Section 7 – Preparation For Divorce
From the lawyer’s point of view, information is the most precious commodity in a divorce case. In general, there are three categories of information that are required in every case: 1) personal data, 2) budget information, and 3) balance sheet information.
In cases involving children, it will also be necessary to have information about the parental skills and shortcomings of both spouses.
Data concerning the parties and children is required. The full name, date of birth, place of birth, Social Security number, driver’s license number, date and place of marriages, etc. for all persons is necessary.
The first phase of divorce litigation is generally focused on budget matters because the court needs to set financial ground rules for the parties during the time the divorce case is pending. A budget of cash flow (all forms of income) and expenses is necessary to assist the judge in determining how to allocate the resources. Therefore, an accurate estimate of income and expenses for both parties is very important.
Most family law attorneys have a budget form they use in their offices. There is no magic to the form itself – it is a guide to assist folks by reminding them of the various types of expenditures they make. A Budget Information Form is posted on this website for your convenience.
Balance Sheet Information
The final orders entered in a divorce suit will include a division of the assets and liabilities – the marital balance sheet. Information about those items is essential. Coupled with many of the items there will be documentation, for example, income tax returns, bank and brokerage house statements, deeds, auto titles, stock certificates, promissory notes, security agreements, etc.. Those documents assist the lawyer in determining what exists and how it came to be in its current form.
Lawyers usually have a form they have devised to compile information about a client’s assets and liabilities. Like the budget form, there is no magic to the form itself – it is intended to prompt folks to remember what they own and what they owe so that items are not overlooked. Completing the information areas that apply to your situation will provide you with a better perspective on your financial situation and assist your lawyer in counseling you. A Property Information Form is posted on this website for your convenience.
By gathering as much data as possible with respect to all three categories is of great assistance to the lawyer. It helps outline what issues will probably be of significance and thereby gives the attorney the ability to provide you with more accurate predictions concerning the work necessary to prepare the case for settlement or trial. Your work in providing the information will pay off for you.
The vast majority of disputes related to children are settled. However, in order to evaluate a party’s position with respect to custody matters, a lawyer will look to history as an indication of the future. Usually the parent who has shouldered the bulk of the child rearing responsibilities in the past will do so after the divorce – and will probably be the best equipped to do so. Therefore, information about which parent did what for the benefit of the child is important.
Section 8 – How Much Will This Cost?
The most truthful answer is not very satisfying because that answer is “There is no way to know at this point in time”. As the litigation progresses, your lawyer can provide better information about that issue, but at the outset of things, there is no good answer.
There are a number of factors that influence the cost of family law litigation and many of them are beyond the control of the attorney. Therefore, it is virtually impossible to estimate the total cost of a suit, particularly during the early stages of the case. The best that any attorney can do is keep you informed during the course of the suit and manage those aspects of the suit that are within his/her control.
The most common factors that have an effect upon the cost of litigation are:
- The complexity of the case.
- The experience and expertise of the attorney.
- The demands placed upon the attorney’s time by the case.
- The county in which the case is filed.
- The particular judge before whom the case will be litigated.
- The extent of the information in a client’s possession vs. the information needed to prepare the case.
- The emotional and psychological needs of both clients.
- The objectives and attitude of the opposing client.
- The attitude of the opposing counsel.
- The financial resources of the parties.
The more complex the marital estate (the number of properties, the difficulty in placing values on the assets, etc.) or the issues requiring resolution (child custody, etc.) the more expensive the suit is likely to be.
Expertise Of Attorney
Board certified attorneys and more experienced attorneys generally bill at higher hourly rates.
If the suit monopolizes the attorney’s time to the exclusion of other matters, the fees will usually reflect that fact.
County Where Suit Filed
Court procedures vary from county to county and, sometimes, from court to court. Some have general jurisdiction courts, others have specialized courts. Some utilize a rotating docket, in others each court sets its own docket. Certain courts set family law matters on a given day, others scatter them throughout the docket settings. All of these factors can affect how much time will be spent waiting for a case to be heard, how quickly a case can be placed on the docket, etc..
Judge Who Handles The Case
Some judges and their staffs do a better job than others of managing their dockets. Certain judges readily refer docket clogging cases to visiting judges whereas other judges are very hesitant to send cases to visiting judges. Some judges take longer to handle their cases than others.
Extent Of Party’s Information
Knowledge of the marital estate (assets, debts, contingent liabilities, character of property, etc.) and pertinent facts related to the suit (the activities of the opposing party, transactions by third persons, etc.) is necessary to properly evaluate a client’s position. If the client has limited knowledge of such matters, more time is necessary to gather the information.
Emotional Needs Of Both Clients
The emotional stages of family law litigation (particularly in divorce cases) are similar to those related to a death: 1) denial, 2) anger, 3) bargaining, 4) depression, and 5) acceptance. Working through those stages requires time and involves the expenditure of more time by the attorney who needs to “counsel” with a client who is working his/her way through those issues.
Objectives Of Opposing Party
An opposing party stuck in the anger stage of the psychological cycle related to matters in controversy is likely to use the litigation process as a tool of destruction. Doing so escalates the expense of the case. Since the real issues requiring resolution cannot be effectively addressed until both parties are willing to do so, there may be considerable time expended by a lawyer in bringing his/her client to the point where the client will tackle the real problems in the case.
Ethical attorneys endeavor to handle the client’s matters conscientiously while limiting the client’s expenses. Unfortunately, not all lawyers do so. The expenditure of time by one attorney generally escalates the time the other attorney must devote to the matter.
Litigation drains the parties’ financial resources. Some parties have ample money and are willing to spend it for attorney’s fees and other costs of litigation without a thought of settling the case. Those cases are expensive for everyone involved. On the other hand, most folks do not have unlimited funds and they are reluctant to spend money on lawsuits. In those cases, the financial cost of the suit pushes people to find settlement alternatives that are less expensive.
Section 9 – What Next?
Once you have made the decision that a divorce lawsuit is inevitable, then the next step is to make a decision about hiring an attorney. There are no rules concerning whether to hire or how to hire a lawyer. There are, however, some things you should think about during your search.
Why do I need a lawyer?
In a family law setting, it is helpful to know what to expect. Seeking legal advice before the suit is filed will generally help you plan for the contingencies that you might otherwise have overlooked.
The “water pump” analogy is appropriate – if your automobile needs a new water pump and you feel comfortable removing the old pump and installing the new one, then doing so yourself makes good sense. If you don’t feel that you have sufficient knowledge and skill to perform the task yourself, then hiring a mechanic is the right thing to do. Certainly, handling a lawsuit is at least as important as the replacement of a water pump and the logic about hiring a “legal mechanic” is the same. A lawyer will handle your case with knowledge and skills that you probably do not possess. In general, it makes good sense to hire a lawyer to assist you through the litigation process.
Are there lawyers who specialize in handling divorce suits and related matters?
Yes. In Texas, there are several areas of “specialization” that are available to attorneys who meet the qualifications set by the Texas Board Of Legal Specialization. Family Law is one of those areas of specialization.
Generally speaking, the lawyers who have qualified as specialists in a given area of law are more experienced in that field than lawyers who are general practitioners. Depending upon the facts of your particular case, it might be advisable to hire a person who is certified in family law practice.
How do I find a lawyer?
Referrals by friends or business associates may be a good avenue to start your selection process. Another alternative may be to contact the lawyer utilized by your employer or the in-house counsel for your company. Although most of those attorneys do not handle family law cases, they generally have names of lawyers to whom they refer such matters.
Once you have a name, you can check on the attorney’s background through several sources. The most readily available source of very basic information is the Yellow Pages. However, other than contact information, phone book listings are of no value to you. A large advertisement simply means the lawyer has spent money on advertising and has no relationship to his/her level of competence.
More detailed information concerning attorneys is available from other sources. You can contact the State Bar of Texas located in Austin by phone or through its web site. Martindale-Hubbell is another source of data. Martindale is a legal directory that includes detailed background material concerning attorneys and it is available on line or in printed form in libraries. There are also other referral services or listing services that are available through the internet. Many of them provide more information than you can locate in the Yellow Pages, but generally less detail than is available from Martindale.
Some lawyers advertise in the TV guide, newspaper ads or via Yellow Page ads. Those of us who began to practice when lawyer advertising was virtually forbidden by the ethical rules are not pleased with the flood of advertising material we have seen in recent years. In this lawyer’s opinion, much of it devoid of meaningful information and sometimes outright misleading. Generally speaking, the more established law firms in every area of practice will have a presence in the Martindale directory and probably have a firm web site, but will not be found among the large ads in the Yellow Pages, nor in the newspaper ads.
There are referral services available through the Dallas Bar Association and the State Bar of Texas. Listings for those agencies are in the phone book.
What should I do after I have several names of lawyers?
Call them. Frequently you will not be able to reach a lawyer by phone. However, it will give you some idea of how the lawyer’s office functions by how quickly you receive a return call. Further, if you have an outline of questions, a brief conversation may yield helpful information that you previously did not possess. A call will also give a feel for whether you and the prospective lawyer will communicate well with one another.
What fee information should I hear from a lawyer?
Generally speaking, family law practitioners will quote you an hourly rate and a retainer figure. The retainer will differ dramatically from one law firm to another, depending upon the guidelines set by the particular firm for the kinds of cases they accept. The retainer will also depend upon the size and complexity of the case. For that reason, a lawyer may be hesitant to quote a retainer figure over the phone because he/she probably will not have enough information about your particular circumstances to do so.
The hourly rates charged by lawyers are usually based upon the experience level of the specific attorney. Specialized attorneys are generally more expensive than general practitioners and those who have more experience in the field usually bill their clients at higher hourly rates.
In the family law area, many firms employ associate attorneys, legal assistants or para-legal personnel. Usually, the time those persons spend working on a case will also be billed to the client. You should inquire about those rates.
How will I know which lawyer is best for me?
A phone conversation followed by a face to face meeting is probably the best approach to take in evaluating attorneys. You may want to talk to several lawyers before making a decision. Experienced attorneys who are competent in their field will encourage you to do so.
If you speak with a lawyer by phone, you probably will not be billed for the time spent. However, many firms bill people for conferences whether the firm is hired to handle the case or not. Therefore, you should inquire about the policy of the firm before you assume that face to face consultation time will be free.
After you have spoken with any attorney, you should consider several factors in determining whether or not to hire the person. Those factors include:
- Knowledge and experience in the area of law.
- Evaluation of your case as related to you by the lawyer.
- Confidence you have in the person who provided you with the referral.
- General “feel” for the relationship with the lawyer – is it as comfortable as you could hope for under the circumstances.
Evaluate the persons with whom you have spoken and trust your instincts in determining what to do.
Will there be a written contract for the attorney’s fees?
Yes, there should be. It should include the amount of the retainer to be paid, the hourly rates to be charged for the various persons whose time will be billed to you and information concerning any other financial arrangements that will be in effect. Because most firms use a “standard” agreement for their clientele and the steps to be taken in a family law case need to be tailored to the particular lawsuit, the contract probably will not include a specific outline of what will be done to handle your matter. That information will be provided to you by the lawyer as the suit progresses.
What is collaborative law and is it the right thing for me?
Collaborative law involves an agreement of the parties and their lawyers to address and resolve the issues in the divorce case through negotiations rather than litigation. The process works very well if the parties are able to put aside some of the emotional and psychological trauma of the divorce and focus on the resolution of the issues. In those cases, the process usually operates more efficiently than the litigation process.
On the other hand, certain cases are not good candidates for the collaborative process. Those cases include the ones in which the level of hostility is high, the level of distrust is significant, or vengeance is an objective pursued by one or both parties.
Section 10 – A Final Thought
A sense of perspective is a scarce commodity when one is involved in a divorce or other family litigation. Yet it is the most essential of tools to plot your course through the process. Do your best to make evaluations and decisions based on good sense and a realistic view of the available alternatives.
Hopefully, this document has provided practical and useful information about the divorce process. Feel free to contact us for a conference to discuss your particular situation.