SELECTING A DIVORCE ATTORNEY
INTRODUCTION: As a service to our family law clients, the Military Committee of the American Bar Association's Family Law Section has prepared this handout with frequently asked questions on issues that arise when trying to select an attorney to handle your divorce. It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these questions and answers carefully in connection with your visit to our office so that you may have the fullest information available to help you with your family law problem. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.
1. Q. WHERE DO I START THE DIVORCE PROCESS?
A. Getting the right lawyer is often the first step. Whether the attorney you select has represented you previously or has been recommended by a friend, relative, or bar association lawyer referral service, the important thing is that you communicate well with each other and that you have confidence in his or her ability to handle your case.
You may want to consider hiring a lawyer who specializes in family law. Many states allow lawyers to become specialists and list themselves as such if they meet certain qualifications. You can get a list of family law attorneys who are members of the American Bar Association at www.abanet.org/lawyerlocator/searchlawyer.html. A list of fellows of the American Academy of Matrimony Lawyers can be found at www.aaml.org.
What you say to your lawyer is "privileged information." Generally speaking, this means that anything you tell your attorney must be held in confidence unless you give permission otherwise. In addition, your attorney has the duty to: (1) allow you to make the major decisions in your case, such as contesting custody or accepting a settlement for alimony; and (2) remain open and honest with you in all aspects of your case, including your chances of success, the positives and negatives of your position, and the time and fee required.
2. Q. HOW MUCH WILL ALL OF THIS COST?
A. Lawyers set fees in a number of ways. The major types of fees in the family law area are flat-rate and hourly billing. Lawyers may use a flat fee when the work involved is straightforward, predictable and routine. Thus, many lawyers use a flat rate or set fee in uncontested divorces, adoptions and name change cases. A flat fee generally is paid in advance and does not vary depending on the time or work involved. No refund is due if the work takes less time than expected, and no additional charges are incurred if the case is longer or more complex.
An hourly rate is most common when the client's work will be substantial but difficult to estimate. Thus, for example, a lawyer might charge an hourly rate in a contested custody or alimony case. It is fairly common for the lawyer to require part of the fee to be paid in advance, or A up front. @ This A retainer @ is a deposit or downpayment to make sure that the client is serious about the case and is financially prepared to cover all costs. The size of the retainer and whether any part of it is refundable will vary from case to case and lawyer to lawyer.
In certain cases, the court may order one party to pay some or all of the other's legal expenses. For example, the court can usually make such an award in cases involving alimony, child support, custody and paternity. Remember, however, that the award of attorney's fees in such cases is not mandatory or automatic. Such an award depends on a variety of factors, such as good faith, need, lack of adequate support, and so on. The courts see these awards as a way to pay back or reimburse for attorney's fees already paid or presently due. A client will have difficulty retaining a good attorney based on the promise or hope of court-awarded fees. This is especially true because court-ordered fees are not always paid and additional legal work may be required to secure them.
3. Q. WHAT QUESTIONS SHOULD I ASK THE LAWYER?
A. You should ask him or her some background questions to get an idea of whether you'll be getting the knowledge and experience you need for your particular case. Some cases might require a “brain surgeon” for the attorney, and others would not. The client should ask the attorney about his/her experience in the specific area which is involved in the client's case. Here are some examples –
__How long have you been practicing law?
__How long have you been practicing family law?
__Is your practice exclusively family law?
__To which bar association family law sections do you belong to?
__What offices have you held in those organizations?
__Are you a specialist in family law? How long have you been certified?
__Are you a member of the American Bar Association's Family Law Section?
__Are you a Fellow of the American Academy of Matrimonial Lawyers ?
__What articles have you published, or manuscripts have you presented, in the area of family law? Can I have a copy of those written in the last __ years?
__Are you on any local or statewide boards or committees dealing with family law?
__Have you ever gone up against Lawyer X (opposing attorney) in a trial? What results?
__Tell me about your participation in alternative dispute resolution (arbitration/mediation).
__Are you certified as a mediator? As a family law arbitrator?
__How do you use associates and paralegals to hold down clients' bills and expand your ability to work on cases?
__What client handouts do you have that will help me understand my case and how you can help me with it?
4. Q. HOW CAN I MAKE SURE THAT MY LAWYER IS DOING WHAT I WANT?
A. To ensure that your lawyer understands what you want, ask specifically: (1) What will be done in your case, (2) approximately how long will it take, (3) what difficulties may be encountered, and (4) about how much it will cost. If you want this information included in a written contract between you and your lawyer, ask for that. Be sure to read the contract before you sign it.
Ask also for an estimate of the total charges and a list of services covered in the estimate. Inquire about what steps your attorney expects to take and how much time (or expense) they might involve. An experienced lawyer should be able to outline the process for you with a fair degree of accuracy. Although many cases are resolved as standard A uncontested divorces @ with no alimony, property, or child-related issues, quite a few others are completely unpredictable. Don = t expect a specific dollar amount to be quoted as A the entire fee @ in anything but a standard uncontested divorce. In fact, be wary of an attorney who promises to handle your case for a fixed sum, since it is impossible to tell what will occur in all but the most routine, uncontested divorce case -- one involving no issues of alimony, property division, custody or child support, no problems serving divorce papers on the other party, and two parties who want a divorce.
The rules of most state bars require lawyers to communicate regularly with clients and to provide periodic case updates. If this is important to you, ask your lawyer to keep you current and provide copies of the A pleadings @ -- motions, complaints, counterclaims, petitions -- that have been filed in your case, any order or judgment signed by the judge, as well as letters or e-mails exchanged between the lawyers. At the conclusion of your case or upon his or her withdrawal, your lawyer should release your file to you upon request and with reasonable notice.
When you first meet with your lawyer, review the important facts of your case and outline your goals. Although we all have hopes, desires and dreams, it is vital to keep goals realistic and achievable; don = t expect your case to go anywhere if your goals are to embarrass or financially break the other side.
Your lawyer has a duty to be candid with you and explain the pros and cons, the strengths and weaknesses of your case. Do not tolerate failure to return telephone calls; nothing makes a client angrier--and justifiably so-- than a lawyer who won = t respond to a request for information. Also be careful not to get into a personality conflict with the other side (client or counsel), since your money will be wasted on an unproductive A spitting contest. @ Armed with the facts, you can then consider your finances and decide A how much case you can afford. @
5. Q. IF I HAVE OTHER QUESTIONS ABOUT CHOOSING AN ATTORNEY, WHAT SHOULD I DO?
A. Please consult a legal assistance attorney or private attorney of your choice as soon as possible. Your lawyer can answer the many questions about finding a divorce attorney and help you to make a fair and intelligent decision about your choices, options and alternatives. Our assistance office stands ready to help you in these matters. Be sure to bring along with you to the interview a copy of any documents or court papers that might be helpful to your attorney.
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his handout is adapted from an article in Family Advocate (American Bar Association Family Law Section), Summer 1999, p. 2 by the author. THE LEGAL EAGLE SERIES OF CLIENT HANDOUTS IS PREPARED BY MARK E. SULLIVAN, CHAIR OF THE MILITARY COMMITTEE, ABA FAMILY LAW SECTION AND AUTHOR OF THE MILITARY DIVORCE HANDBOOK (AM. BAR ASSN. 2006). COMMENTS AND SUGGESTIONS SHOULD BE SENT TO HIM AT: 2626 GLENWOOD AVENUE , STE. 195 RALEIGH, N.C. 27608 [919-832-8507]; E-MAIL— MARK.SULLIVAN@NCFAMILYLAW.COM