The other night – actually, at Girl’s Night Out – I sat and talked for awhile with a woman who is in the middle of an ongoing divorce and custody case. She didn’t hire an attorney from our firm, and I could tell that she was just desperate to talk about her situation. She wanted to make sure she had placed her trust in the right person.
I’m paraphrasing, but she said something along the lines of, “I wish I could trust my lawyer, but I feel like there should be more information about what our case strategy is, so that I know how to prepare, and I have no idea what he’s thinking.”
Long story short, it doesn’t sound like her attorney – whoever he is – is doing anything wrong, except not speaking to the concerns that this particular client had. But, then it did get me thinking about how many of OUR clients might feel similarly. Because, ultimately, in terms of strategy, I think that attorneys and clients probably think of these things differently.
Divorce Case Strategy: At the beginning
When I talk about scheduling consultations and coming up with a plan for your case that takes into account your goals for the process, I talk about strategy. In fact, I’m pretty sure I’ve used that word kind of a lot in the different articles I’ve written over the years.
In that context, before you’re hired an attorney or filed for divorce or begun to negotiate a separation agreement, I’m talking about strategy in terms of the TYPE of divorce you plan to pursue. Are you going to use fault grounds or no fault grounds? What’s your date of separation? What are the major issues – spousal support, child custody? Do you think he’ll be reasonable? Is he an abuser, a narcissist, or mentally ill? Do you have a good sense of the overall financial picture?
These kinds of questions will help me make a recommendation to you about whether you should file for divorce with the court or attempt to negotiate without filing. There’s a lot of strategy in that decision, and it doesn’t necessarily touch yet on our strategy for, say, a divorce trial – if it ever comes to that, which is probably unlikely.
I talk a lot about the differences between fault and no fault, contested and uncontested divorce, and what that means for how long a divorce takes, how much it costs, and whether you’ll achieve the results you’re after. A lot of that boils down to strategy at the beginning of the process, and coming up with a course of action that keeps your end goals in mind.
It’s not a question, at this point, of trial preparation.
Divorce Case Strategy: Once you hire
Then, once you hire, we set the wheels in motion. If we discussed filing, we’ll file. We’ll usually propound discovery. We’ll set a pendente lite hearing. There’s a flurry of activity. It’s all part of the strategy in the sense that these are things that need to happen. We need to use discovery to determine the issues, assets, liabilities, and so on in each case. We need to have a pendente lite hearing to get temporary spousal and/or child support, to get exclusive possession of the home, and certain types of restraining orders.
But then, once that first flurry of activity has calmed a bit, we generally turn our attention towards negotiating an agreement. You’ll keep moving, slowly, towards a trial date, but, unless your grounds are adultery, you’ll still need to be separated for a full year before you can finalize – and, even if your grounds ARE adultery, chances are very, very good that you’ll want that long anyway. So, you’ve got time. And, in any case, there are things we have to do, like settlement conferences in most cases, before we can set a date.
So, our first priority is negotiating an agreement.
If you retained on a separation agreement case to start, we’ll start here – we wouldn’t file, propound discovery, or have a pendente lite hearing. We’ll start with negotiations.
Negotiations aren’t so much a question of strategy.
At that point, it becomes a question of “What will we offer first?” or, if he drafts the first version of the agreement, “Is this acceptable to us? What would we change? Where would we argue that something else is more appropriate?”
Nothing is binding; it’s all a discussion. It’s less a question of strategy and more a question of having meaningful conversations between attorney and client to come up with a comprehensive document that addresses your unique concerns, and helps you and your soon-to-be ex move forward into the future with clarity.
For example: The woman I spoke to the other night mentioned that her child’s father was calling at all hours and demanding to FaceTime with their (very young) children. A good way to combat that – which, after all, is an exercise in trying to control the mother, not attempting to connect with the children – is to build out a specific schedule in the agreement. FaceTime should take place on Tuesdays and Thursdays between the hours of 6 and 7. Mom will dial, and set the phone up, but will otherwise disengage and let Dad have time uninterrupted. Depending on your unique situation, you can come up with provisions that address particular problem areas.
It’s not really a strategy though; it’s an exercise in refining a document to the point that both parties are willing to sign.
Divorce case strategy: The trial
If you aren’t able to reach an agreement, eventually you’ll go to trial. At that point, we’ll have a much better sense of what the issues are. Is it custody and visitation? Is it spousal support? Is it something else? At THAT point, we’ll be talking about strategy – what we need to prove, who we’d call as witnesses, what evidence and exhibits we’d introduce.
At that point, it’s appropriate to start talking about what that’ll look like, and coming up with a strategy to get the specific provisions you want entered into the order. Keep in mind, though, that getting an order entered by the judge gives you a LOT less room to be specific than negotiating an agreement does, so it’s more a question of, say, getting the right amount of spousal support than coming up with a highly detailed custody and visitation agreement.
Strategy means different things at different times, and it may not seem like as much of a detailed plan as you maybe thought. Depending on where you are in the process, you’ll be trying to do different things.
If you aren’t sure about your attorney, ask questions. Or set an appointment with another attorney to get a second opinion.