CHOOSING THE RIGHT DIVORCE
Once it is apparent
that divorce is inevitable, It is essential that you find the right divorce lawyer.
A good first step is to talk to those you know who've been through a
divorce. Ask your friends or family who reside in the same
geographical area for a recommendation. Often, the local bar
association will have a referral service. Alternatively, do a
keyword search with an Internet search engine, keying in on the
specific issues that you anticipate will be raised in your divorce.
Your search might look something like this:
divorce lawyer Anytown, Michigan
child custody lawyer, Anytown,
property division, separate
property, Anytown, Michigan
When you access the results of
your search you'll need to make a decision: (a) are you going to access the paid
links to find an attorney (someone who has paid the search engine to give them
preferred placement) or (b) are you going to look for websites that are listed
with the search returns as "relevant" to your search? Keep in mind that if a
lawyer's website independently appears in the search engine's results near the
top of the list (say within the first 20 returns to your search query), there's
something on that lawyer's web site that told Google (for example) that the
lawyer's website is one that is relevant to your search.
Bear in mind your
goals. You might not need the best and most expensive litigator money can buy.
Your divorce may have only basic issues that need to be negotiated
or expressed properly in a judgment. If there are no children
involved, you may need someone who can handle the whole thing quickly and inexpensively.
However, if yours is a long-term marriage, whether there are
children or not, it's important that you have a lawyer explain to
you exactly what is considered marital property subject to division.
If there are pension interests to divorce, you'll definitely need a
lawyer to get that done right. Even if you plan to do the divorce
yourself (and I've seen enough disasters post-judgment to
wholeheartedly urge you not to go there!), it's best to have an
initial consultation with a lawyer who will explain that "marital
property" is and what "separate property" is. Should you
a lawyer who's "compatible" with you: one who understands and
respects your thoughts and feelings about your divorce? Or can --
and more importantly, should -- you get a "do-it-yourself" kit or
Your own unique circumstances
will help you decide. Here are some basic guidelines to help you.
Finding a divorce lawyer
The most important decision you'll make during your divorce proceedings
is which divorce lawyer will represent you. There are good divorce lawyers and bad divorce lawyers. It's up to you to do your homework -- and to ask the right questions -- to determine
whether your family law attorney is effective or not and whether he
or she will be right for you.
Ideally, a family
lawyer lets the client participate in discussions about your situation,
about how the facts of your case are impacted or supported by the
law of the State where your divorce will occur. A good family law
attorney will give you advice and information that you may not want to hear."
Take some time to set down and talk to a local family lawyer (or
more than one). Ask yourself, after spending a half hour with
the divorce lawyer, these questions: Do I feel comfortable with this person?
Does this attorney seem to know how the laws of this State apply to
the particular facts of my case? Do I respect his or her opinion? Does this person respect mine?"
Here are some
important qualifications you will want your divorce lawyer to have:
Practices matrimonial or family law. A divorce lawyer who specializes in
some other area of the law, or is "A Jack of all trades and
master of none," even if he or she's your best friend, won't be much help to you.
Can work with other
professionals. Most divorce cases will involve interaction
with other processionals such as accountants, real estate
appraisers, actuaries who will compute a present value of a
pension, etc. Your lawyer needs to be able to work with these
folks to find and value assets.
Has a lot of experience.
Many of us have experienced being in the care of a relatively
new doctor. Often, these professionals are really up-to-date on
new technology, new medications and new treatments. However, if your divorce lawyer is fresh out of law school,
it's important to be sure he or she has an experienced mentor at the firm -- one with an excellent knowledge of relevant divorce law.
Is a skilled negotiator. If your case can be settled without a protracted court battle, you'll probably save a great deal of time, trouble, and money.
Moreover, you'll be able, if there are minor children, to
resolve issues before the parenting relationship implodes and
you can't even talk to each other.
Is firm. Your divorce
lawyer should be skilled at negotiation. Only about 10% of cases
go to trial. It's important that your lawyer have strong
Is reasonable. You are
trying to achieve a reasonable and fair settlement. Unless your
case settles, it will go to trial. As a result, both parties and
the children lose, and the lawyers win because the case drags on
and the fees and costs get out of control. Therefore, you'll want
a divorce lawyer who'll advise you to settle if the offer is fair,
one who will not make the case drag on and on to increase his or
her fees or to satisfy your need for revenge.
Is compatible with you.
It's important for you to respect and trust your lawyer. You don't have to become best friends, but you must be comfortable with your lawyer.
Your lawyer can only do his or her best job for you if the
lawyer knows everything. You need to be able to tell him or her some of your deepest, darkest secrets.
Your lawyer will be at a serious disadvantage if you can't bring yourself to disclose information relevant to the case.
You want to be on the same wavelength so that you can work
together to identify and resolve critical issues.
Is totally candid. You
want to find a divorce lawyer who will tell you up-front what he or she thinks your divorce
should cost and also what your strong and weak points are. this
will help you evaluate how best to resolve the issues.
Is not in conflict with your best interests.
You should not share a divorce lawyer with your spouse. You
should never choose a divorce lawyer who is your spouse's best friend (even if he's a friend of yours, too), business partner, or any member of your spouse's family -- even if you
get along well with them. It's unwise to work with a lawyer who
has a potential or actual conflict of interest, Moreover, you'll
be burning bridges you might want in the future.
Choose a Specialist
Every divorce has its
own unique set of facts. Sometimes there are issues that require special attention
and/or special expertise and knowledge. It is best to find a divorce lawyer who concentrates on
family law. Sometimes you'll be able to find a lawyer who has
specific expertise in some of the issues that may arise in your divorce. Here are some examples:
Men's/Fathers' Rights. A
good way to find a good fathers'-rights lawyer is to go to
Google or your favorite Internet search engine and to type in a
search query that looks something like this <<father's rights
divorce lawyer Anytown Michigan>> or <<father's rights divorce
lawyer northern Michigan>>. Avoid directories. (Any one can pay
for a listing). Look for "organic" returns to your query. In
other words, check out the web sites of lawyers whose web sites
are listed under the pay-per-click listings. Look at the web
site and see if there are indications that the lawyer really
looks capable and experienced. Call lawyers and ask them if they win custody for fathers. If they say 'yes', ask them for a consultation.
Consider asking the lawyer(s) you interview for references
(satisfied clients). Ask questions like: 'Does he settle? Does he fight? Does he build a team out of himself and the client?'
Be aware, however, that some lawyers won't provide clients referrals in order to protect their clients' privacy.
As a woman, you may have the right to a share of the assets
(including your husband's pension), the family business, or
property attained during the the marriage, whether you worked
outside the home or not. Surprisingly, many women have no idea
what actually constitutes marital and divisible property. A women's right lawyer knows the language and the issues and has the experience to get past the barriers that women face in divorce."
Custody. It's very
important to find a custody lawyer if you believe custody of your children will become a major battle.
Custody should always be resolved before property issues so that
no one can hold the children over the other party's head to
exact an unfair property settlement. A lawyer who is experienced
in dealing with custody and parenting time issues and who has
developed relationships with experts who may help the court
evaluate the suitability of a parent to have primary custody will help achieve the most favorable outcome.
Moreover, there are legal issues not readily understood by a lay
person that will help parents lay the foundation for parenting
plans that will work in the future. Therefore, it's essential to
find a lawyer who has the experience and a good working knowledge of the law surrounding custody. Without this knowledge of the specific legal process the children involved could be negatively impacted.
Small Business. If one or both of you owns a small business, you should "seek a lawyer or a firm that has knowledge of businesses and corporations as well as family law.
You also want a family lawyer who works well with the experts
who can evaluate the worth of the family business. Having the knowledge will guarantee that you get your fair share. Your lawyer will have to look at the worth of the business, cash flow versus debt, and evaluate corporate partnerships, real estate, and your liability.
International. If your divorce deals with out of state/country property, or if there is a threat of having your child removed from the country, hiring a family lawyer who knows international divorce law and policies is essential. Not every lawyer can handle cases such as these. You need someone who has the experience and the knowledge of other countries' divorce laws and views on custody and property.
Bankruptcy. If one or both of you is facing bankruptcy, hiring a divorce lawyer who understands bankruptcy law can save you lots of time and money.
Nevertheless, often it's more important to hire a family law
expert who will work with a bankruptcy lawyer.
Little firm, big firm
You also need to decide whether you'd like to be represented by a sole practitioner or a full-service family-law firm. Your choice will be partially dictated by your spouse's choice: if the divorce is relatively easy and friendly, you can probably agree on what kind of representation you need. If the divorce is very bitter; if there are children, money, or large assets at stake; or if your spouse is just plain "out to get you", consider hiring a "top gun" -- whether that be a well-respected individual or a team of lawyers at a prestigious firm.
Be aware, however, that a silk stocking large firm will want a
retainer in the neighborhood of $25,000 or more. You may need to
evaluate whether you really need that much lawyering.
The main advantage to hiring a sole practitioner is that you know exactly who will be working on your case; in bigger firms, the lawyer you speak to initially may not be the one who does the bulk of the work on your case. You will get to know your sole practitioner well, which should make office visits or phone conversations a little more comfortable.
A one-on-one relationship with the
lawyer is very important to some people. Divorce is a very personal and psychological thing. Having a closer connection with a family lawyer allows a client to feel comfortable and offers him or her the chance to
provide help and guidance toward resolution of some of the larger
problems. A sole practitioner will usually be less expensive than a big family-law firm,
but much depends upon the skill, reputation, and level of
experienced of a top practitioners.
If you're looking for a divorce law firm to represent you, remember that they come in all types and sizes. A firm can be three lawyers and a few paralegals, or 100 lawyers and more than 20 paralegals. You can hire a general practice firm that deals with various areas of the law and has a smaller department that handles divorce and family law, or a matrimonial firm that handles only matrimonial matters. "In this world of specialization, it can be essential to have an attorney or firm that deals with family-law cases on a regular basis. A general practitioner wouldn't know the everyday workings of divorce law that a matrimonial attorney would deal with
on a daily basis.
Your primary concern,
however, should be whether the divorce lawyer you choose has the ability handle your case. Size doesn't always matter. If your
divorce lawyer listens to your wants and needs and does all he can to achieve them, it doesn't matter if he is with a law firm of two or of fifty.
The initial interview
You should invest the
time and money to find the lawyer who will do the best job for you
because the outcome of your divorce proceedings will change the
course of your life forever. When looking for a lawyer, you should interview two or three prospective professionals before deciding who'll represent you. Remember: it's your responsibility to retain a lawyer who's not only good at his or her job, but one whose personality and outlook are compatible with yours.
The following are
some of the questions you should ask during your initial interview:
Do you practice family law exclusively? If not, what percentage of your practice is family law?
How long have you been practicing?
What is your retainer (the initial fee paid -- or, sometimes, the actual contract you sign -- to officially hire a divorce attorney)? Is this fee refundable? What is your hourly fee?
What is your billing technique? You should know what you're paying for, how often you will be billed, and at what rates.
Approximately how much will my divorce cost?
Because the ultimate cost of a divorce will depend entirely upon
the number of hours and the out-of-pocket expenses that are
required to resolve the issues, it will be impossible for a divorce attorney to provide
more than just an estimate, which will be based on the information you provide,
which should include your realistic estimation of how amicable you and you spouse are. If you think your case is extremely simple, but your spouse's divorce lawyer buries your family attorney in paperwork, you can expect your costs to increase.
What do you think the outcome will be?
Be open to bad news. A good divorce lawyer will give you
reasonable expectations, not develop pie-in-the-sky ideas about
what you should expect in a settlement. Remember, you're looking for truthfulness here -- not to be told a pretty story.
If your spouse has retained a lawyer, ask your prospective lawyer whether he or she knows this lawyer. If so, ask "Have you worked with him or her before? Do you think the divorce lawyer will work to settle the case? And is there anything that would prevent you from working against this lawyer?"
You should feel comfortable if the lawyer has a good working
relationship with the other attorney because, in the end, that
should result in a settlement on fair terms at a reasonable
What percentage of your cases go to trial? You actually want to choose a family-law attorney with a low percentage here -- a good negotiator who can settle your case without a long, expensive court battle.
Are you willing and able to go to court if this case can't be settled any other way?
How long will this process take? (Again, the answer will be an approximation.
In Michigan, the law states that no divorce judgment may be
entered until at least 6 months have elapsed since the date of
filing if there are minor children. Without minor children, the
waiting period is 60 days.)
What are my rights, and what are my obligations during this process?
At a full-service firm, ask who will be handling the case: the lawyer you're interviewing, an associate, or a combination of senior and junior lawyers and paralegals?
Should I consider mediation? Ask if your case -- at least in the initial stages -- might be a good one for mediation. If there has been violence in the relationship, or one spouse is seriously intimidated by the other, this may not be a viable alternative.
In many Michigan courts, facilitative mediation is mandatory,
evaluative mediation and binding arbitration are optional and
both parties must agree for that to occur.
Should I consider Collaborative Law? In a collaborative practice, the clients themselves conduct settlement negotiations with their lawyers acting as advisors to the clients instead of taking charge of the process. Each party has to find a collaborative lawyer to represent him or her.
The collaborative lawyer must bow out if the process fails.
Collaborative divorce is not advisable if there is a history of
What happens now? What
do you need from me? Should I be doing something? And when will I hear from you?
If you don't understand something the lawyer said or if there is
a question you feel hasn't been answered, don't be afraid to ask for clarification. There's no such thing as a stupid question.
This is your future on the line. Bring a list of questions with you to the initial interview
and to any subsequent appointments. That will help ensure that
all of your concerns have been handled.
Sometimes, despite their best efforts, people end up choosing the wrong lawyers. Normally, a client will gravitate to the lawyer who will fulfill his or her needs -- whether that be for a tough litigator or low-key negotiator. If
you get to the point where it's clear that you've chosen the wrong lawyer, don't compound the problem by sticking with
this lawyer to the bitter end. That will likely either prolong the process unnecessarily
or end in an unacceptable settlement.
What your divorce lawyer needs to know
You'll also need to provide information to your prospective lawyer during your initial interview. The better prepared you are for this meeting, the more you'll get out of it. Just as you're searching for the ideal divorce lawyer, the lawyer is hoping you'll be the ideal client: calm, businesslike, competent, and well prepared.
To eliminate unnecessary expense and to optimize your relationship
with the lawyer, be organized, willing to work together with your
lawyer to attain your goals, and be willing to listen to your
lawyer's advice, pay his/her bills on time, and settle if possible.
Of course every case is unique, but the following checklist will give you an idea of what information your lawyer is looking for during your first meeting. You need to disclose:
Why you are seeking a divorce. What caused your breakup? Are you sure you want to end the marriage, or is the visit to a lawyer meant to be a wake-up call to your spouse?
Tell your lawyer what you really want. If you're secretly hoping for a reconciliation
instead of a divorce, then you and your lawyer will be working towards different goals.
Personal data. Bring as much personal data about you, your spouse, and your children (if any) as you can gather. Write down your names (maiden name too, if applicable); your home and work addresses and telephone numbers; your ages and places of birth; your Social Security Numbers; your states of health -- both mental and physical; your Green Card(s) and immigration papers (if applicable).
Facts about your marriage. When and where did you get married? Did you sign a prenuptial agreement
or a postnuptial agreement? If so, bring a copy of the agreement with you. Have either of you been married before? Bring the details of your previous divorce(s) with you.
If there was there any abuse in the marriage. Your lawyer will need to know if you were ever a victim or a perpetrator of abuse. Despite the fear you may have revealing this kind of information, your silence will prevent your lawyer from doing his or her job in representing you. Knowing about the abuse also allows your lawyer to acquire orders of protection for you and your children.
Whether there will be custody or access issues. Do you have children, and are there issues that will involve them -- such as custody, joint custody, and access? If so, be prepared to discuss these issues in some detail on your first visit to your lawyer. This is more important than financial information, because until you know what's happening with regard to the children, you can't plan anything with respect to your settlement."
Although some couples are able to defer custody issues and get the financial issues out of the way first,
this is not the recommended method since it may allow an abusive
financially selfish spouse to use the children to get what he or
she wants in the way of custody and parenting time.
Financial information. What assets and debts did each of you bring into the marriage? What are your incomes and what are your expenses -- jointly and individually? What are the names and addresses of your employers? How much money do both of you have invested: in the bank, the stock market, etc.? Has either of you invested in insurance or a pension plan? What property do you own (a house, car, boat, income property, etc.)? Was the property purchased before or after the marriage? Do you have a mortgage, and how much is still owed? Prior to your appointment, create a budget detailing how much you spend every month on items such as housing, food, clothing, personal grooming, gifts, vacations, etc. If you have children, and expect to be their primary caretaker, make sure you factor their costs into your budget.
Here is a list of documents you should bring to the initial
Legal documents. Bring copies of prior or pending lawsuits, bankruptcy suits, judgments, and garnishments.
What you want to get out of your divorce. Be very specific about your goals in terms of division of property and other assets, custody and visitation, and support payments. Telling your lawyer that "I just want my fair share," or "I want to take
everything that mean, nasty, philandering so-and-so has" will not help him or her to assess your case.
Should I handle my own divorce?
People are attracted to do-it-yourself (also known as Pro Se, which is a Latin phrase meaning "for yourself") divorces because they are supposed to save both time and money. Unfortunately, most divorces are relatively complicated -- involving complex property transfers and their tax implications; plus the issues of support, custody, and access if children or an unemployed spouse are involved. You'll also have to be able to prove grounds for your own divorce.
If you want to try the pro se route, there are some resources available to help you. Check with your local community college, adult education center, or community center to see if they offer classes on divorce. There are some low-cost legal clinics that will fill out your forms and review your separation agreement to make sure the paperwork is complete before it's filed with the court.
Lay people can get
themselves into more trouble when they try to handle their own
divorce because they don't know the procedural ropes, where to file,
etc. They also don't know substantively what they're entitled to
receive in a property settlement. I've seen parents lose custody
because of their basic lack of awareness of the so-called "100-Mile
Rule," when after a divorce they remarry, thinking that it will be a
piece of cake to relocate to another State. There are a hundred and one pitfalls.
If you do create your separation agreement yourselves, both you and your spouse should each retain an independent lawyer to check all papers before signing -- even if the divorce is "friendly" and you think your agreement is very straightforward.
A quality do-it-yourself kit or book will provide a good introduction to the divorce process. If your divorce is very simple and completely uncontested, a kit may be all you need. But if things turn nasty, or you suspect your spouse is trying to trick you into agreeing to a settlement that really isn't in your best interests, you'll need to consult a lawyer -- who may have to charge you even more money to undo what you did prior to retaining him/her.
Jeanne M. Hannah, a family lawyer located in Traverse City, Michigan, represents clients in Grand Traverse County, Benzie County, Leelanau County, Kalkaska County, Antrim County, Emmet County, and other selected counties throughout Michigan. Copyright © 2005 [Jeanne M. Hannah]. All rights reserved.