If you’re getting ready to hire an attorney in your divorce case, you’re probably feeling pretty overwhelmed. For one thing, you’re already intimidated about the whole divorce process and everything it entails. You’re also grieving the loss of your marriage, and wondering what will happen to you in the future. On top of all that, you’re anxious, because you’re wondering whether the attorney you’re thinking of hiring is the right fit.
What should you be thinking about when you’re considering hiring an attorney?
Without a background in the law and the local legal community, it can be hard to make these kinds of decisions. You wonder what kind of reputation your attorney has in the community. You’ve probably already Googled and read reviews of the attorney and her firm online, but you know that you don’t have a complete picture. Is this attorney a fighter? If so, is she aggressive to the point of obnoxiousness, or is she effectively aggressive? Is she the kind of attorney who nickels and dimes her clients? Is this attorney a pushover? Does she have a reputation for settling everything and avoiding the courtroom, whatever the cost? Is she a heavy hitter or a wall flower? Does she have a good reputation with the judges? What is her disciplinary history with the state bar?
It’s hard to know all of these things. Really, in most cases, all you can do is meet with someone and make a decision based on a couple of things. Do you like her? I don’t mean you like her like you want to spend all your time on the weekends with her, but do you think she’s a kind, likable, professional person? Does she have an engaging and polite manner? After all, the way she is with you is likely the way she’ll treat judges, other attorneys, guardian ad litems and experts in your case—not to mention the way she’ll treat you.
Does she have experience in family law? Family law is a diverse and constantly changing area of law, and it’s probably best if your attorney practices family law exclusively. You want to be sure that your attorney is up on all the latest changes in the law, and handles cases like yours on a regular basis. You want her to be comfortable, no matter what your case may throw at her. And the way you determine whether or not she will likely be comfortable is to ask her how much of her practice is dedicated to family law exclusively. Ideally, her answer should be something pretty darn close to one hundred percent.
Does she speak authoritatively, and make you feel confident in her abilities? Regardless of any first impressions you may have made when you first set eyes on her, you have to ask yourself how she makes you feel. Is she confident and comfortable speaking to you about your case? Does she have knowledge of the law and the issues presented in your case? She should sound like she knows what she’s talking about!
Are you comfortable with her fees? Well, honestly, you’re probably not totally comfortable, and that’s okay. For a lot of people, it’s shocking to see how much these things (and, by “these things,” I mean divorce and custody cases) really cost. Still, when you meet with the attorney and then see the number quoted as your retainer fee, you should feel like having that person on your side is worth it. You should also know, ahead of time, how the firm bills and what you can expect. When will you see statements? Will any unused portion of your retainer be refunded to you? What happens if you run out of money? Will you be able to replenish your trust account and keep it at the appropriate level? These are questions you should ask, so the answers don’t surprise you later on.
You should also think about how you feel when you go to the attorney’s office. Is it neat and well kept? Are the staff kind and courteous? Are you well treated? Obviously, you’re not there to look for marble countertops and fancy phones—none of those things indicate how well your case will be handled by the firm’s attorneys. Look more to how you feel, the experience you have, and the way the employees in the office treat you. It says a lot about the office culture and, ultimately, about how you’ll feel when you work with these people.
How do you know you’re hiring the right person?
Well, for starters, you need to do your research ahead of time. Ask your divorced or divorcing friends about their experience. Read reviews online. Google law firms. Read attorney bios. Find one that stands out to you, for one reason or another. Schedule an appointment. Meet with the attorney. Judge for yourself.
Some people meet with one attorney, hire that attorney, and never look back. If you’re that kind of person, you’ll want to do as much research ahead of time to be sure that the attorney you’re going in to meet is qualified. Most family law attorneys charge a fee for their initial consultations, so you’ll want to be sure that you’re not wasting your money on someone that you decide later you really don’t want to hire. Do the research, ask around, and see what others say about your attorney, if anything.
Other people meet with more than one attorney. Much like with a doctor, it’s not a bad idea to get a second opinion with a lawyer, especially if they tell you something in your first appointment that you didn’t want to hear or didn’t expect to hear. I’m not saying that you should hire whatever attorney promises you the sun, the moon, and the stars (because, let’s be real here, you aren’t going to get it in a divorce case), but you should hire one who sounds logical, who listens to you, and who predicts an outcome that you’re comfortable with. Understand ahead of time that everything may not pan out exactly the way your attorney predicts in the beginning, but the attorney should be able to give you a solid, realistic feel for the way your case is going to proceed.
If your attorney seems uninterested, uninspired, or unsympathetic, find someone else. It matters. Your case is important, and you should feel like it is important to the person who represents you.
What will be required of you when you hire your divorce attorney?
Most divorce attorneys require you to sign a retainer agreement, and then pay a retainer fee, in order to open your case.
A retainer agreement is a legal contract that sets forth the scope of the representation. It says exactly what kind of case the lawyer will represent you in. In most cases, it will say either “divorce,” or “separation agreement.”
If your retainer agreement says “divorce,” that means that you’re in court, in a litigated divorce. A separation agreement, on the other hand, means that you’re working towards negotiating an uncontested, no fault agreement. This can be confusing for people who aren’t used to legal language. We differentiate, in our retainer agreements, between cases that are contested and uncontested, and we call them different things.
If you’re retaining for a separation agreement, read what the language says. It may say just “separation agreement,” in which case you would have to re-retain for an uncontested divorce after the agreement was negotiated. (It’s no big deal; I only say this so you won’t be surprised when your attorney wants you to sign another retainer agreement later, after the separation agreement is drafted and signed.) It may also say “separation agreement and uncontested divorce.” If your agreement says that, you won’t have to re-retain.
Usually, custody is part of an already ongoing divorce case, but not always. If you’re in a custody case that is not part of an ongoing divorce, it may say something like, “child support, custody and visitation proceeding in juvenile court.” That means that this is what you have contracted with the attorney to do, and the attorney won’t be required to do any more without negotiating and signing another, separate, retainer agreement.
What’s a retainer fee?
A retainer fee is an amount of money paid to open your case. It’s usually a sum of money that must be paid up front. It’s like insurance that the attorney will be paid for the work she does on your case, and it’s a common practice in family law cases.
As you probably have already realized, every kind of law practices a little bit differently. In a personal injury case, for example, many attorneys will take your case with no money up front, and instead take a portion of your settlement if you win. This is called a contingency fee. In Virginia, at least, family law attorneys are not allowed to take cases on contingency fees. It is considered unethical, so it is absolutely not possible to have an attorney take, for example, a portion of your husband’s retirement after it is awarded to you in the divorce. It just doesn’t work that way in divorce cases.
A retainer fee is your money and, after your attorney’s law firm receives it, it will be placed in an escrow account with your name on it, separate from the account the firm uses for its own operating expenses. When your attorney does work in your case, the attorney bills you and deducts what she billed from your escrow account. Most firms do this once or twice a month, and provide statements to their clients regarding what was billed and how much is left in escrow.
What’s the next step?
It probably goes without saying, but your next step depends entirely on what kind of case you are getting ready to undertake. Not only that, but each attorney and each office has a different way of handling the cases that come in and the steps that they take to open a file. Still, there are probably a lot of similarities in how attorneys (particularly attorneys that practice within the same local court system) practice, because they have to organize things in such a way as to make it as easy as possible when they go into those courts. Some things are easy to predict and organize so that they translate well in the courtroom, and I think it’s safe to say that all attorneys do the best they can to keep things organized so that they can be used easily and efficiently no matter what pops up later.
If yours is a divorce case (meaning a litigated divorce case, not a separation agreement), you’ll probably meet with your attorney soon after the retainer agreement is signed to talk about strategy. In our firm, we call this a retaining meeting, and it usually includes you, your attorney, and the designated paralegal assigned to work on your case. In some cases, it will also include another attorney, if two attorneys have been designated to work on you r case. You’ll talk to the attorney about what your goals are and how to accomplish them. You’ll discuss in detail how you plan to proceed. Your attorney will give you a roadmap for what to expect, and you’ll either agree or disagree with the plan, and then tweak it so that it feels as comfortable as possible for you.
You should be comfortable being very honest with your attorney, because she will need to know all the details that have a bearing on the case. This is the time to get into specifics, talk about your suspicions, and bring forth any evidence you may have. At this point in the process, strategy is critical. Be open, be honest, and don’t hide anything, particularly if you think it may be important. It’s normal to want to keep some things to yourself, particularly if you feel they are damning to your case, but you really don’t want to do that.
If yours is a separation agreement case, you’ll probably also have a retaining meeting (or something similar, if your attorney belongs to a different firm). You’ll use this meeting to talk about your assets, liabilities, and responsibilities, and come up with an idea of how these things should be divided in your divorce. Your attorney will take detailed notes, and will provide you with a draft of the separation agreement soon afterwards, for your edits, revisions, and, ultimately, approval.
At this point, you should provide your attorney with as much documentation as possible. For any retirement accounts, mortgages, credit cards, and other assets and liabilities, you should strive to provide as much documentation as possible. That way, your first draft will be as complete as it is possible to be, and you’ll spend less time (and money) on subsequent changes and revisions. Again, you should also be as open and honest with your attorney as possible.
Hiring an attorney is one of the most critically important parts of the divorce process, so you’ll want to make sure you choose carefully. Take your time, do your research, and follow this guide to ensure that you pick the best, most qualified attorney for the job. If you’d like to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200. Good luck!