Part of the job of a matrimonial lawyer is to be objective, to stay calm and rational during the emotional cross fire of a divorce. Experienced lawyers know that anger can impair their judgment. So they try to avoid personal feuds with the opposing lawyer. Still, some clients are pleased at first when their lawyers attack opposing counsel. Their pleasure usually lasts only until they realize the cost in fees and lost settlement opportunities caused by belligerence. If you feel your lawyer is not being aggressive enough, the two of you should talk about your concerns. Some cases require more aggressiveness then others. But if your desire for a more militant approach is motivated by anger, your best interests may not be served, and your fees will certainly be higher.
D. Dirty Tricks Do Not Help.
Your lawyer will be honest with opposing counsel and will expect you to do the same. Concealing information, lying, or in other ways being dishonest or trying to hide behind legal technicalities will almost always hurt your case. Lawyers and judges are angered by conduct which violates the rules requiring full and truthful information. Your case could suffer if you are less than candid. Another reason to do things right is your lawyer's duty to the judicial system. Lawyers have good reasons to obey all the rules that govern their profession. Breaking the rules means losing the respect of judges and other lawyers, and even risking the loss of a license to practice law.
E. Some Questions and Answers about the Relationship Between Opposing Counsel
Can lawyers be friends and still put their clients’ interests first?
Yes. Matrimonial lawyers take their work very seriously. Even if the opposing lawyer is a friend of your lawyer, both lawyers can and will work zealously for their clients' best interest. Although it is sometimes hard for clients to understand, lawyers learn early in their career to take their client's side and argue positions with great conviction, even if they are arguing against a lawyer who is a close friend.
Why is the other lawyer being so nasty when my lawyer is being so nice?
Lawyers are people, each with an individual style. Some think they gain an advantage by trying to intimidate the other side. Other lawyers are overly aggressive because they think their clients expect it.
Intimidation almost never works. Keeping calm and polite in the face of inappropriate behavior is usually the best way to a settlement or success at trial.
IX. YOUR RELATIONSHIP TO THIRD PARTIES
A. The Court
The judge, often referred to as "the Court", is the decision-maker. Show respect for the office of the judge even if you disagree with the particular judge. Be prepared for the possibility that the judge may not share your view or your lawyer's opinion of what constitutes justice in your case. Some judges are wiser than others, and, being human, they all have good days and bad days.
Never contact a judge about your case. Judges are not allowed to communicate with either party without both parties being present or notified. Any attempt to influence the judge in this way will backfire. Courtesy to the court staff is also essential.
1. Your side
Early in the preparation of your case, you and your lawyer should have a conversation about what experts may be needed, which ones are available and the merits of the different choices. Once you and your lawyer agree to hire an expert, you should give that person your full cooperation. Unless there is a different arrangement, you are financially responsible for the fees and expenses of your expert witnesses.
If you are sent experts' reports for your review and comment, discuss them with your lawyer, not with the expert. Conversations you have with your lawyer are privileged and may not be disclosed to third persons. (See Chapter X, Confidentiality.) However all conversations you have with the expert witness and any communications in writing by you to the expert witness may be obtained through discovery by the other side and used in court. You do not have the right to dictate to the expert what the expert's opinion will be.
2. The other side
Expert witnesses retained by the other side should be treated courteously, even if you disagree with them. Do not talk to any such expert witness without speaking with your lawyer first. You should not volunteer information, nor should you attempt to persuade the expert that you are right. When dealing with experts retained by your spouse, assume that everything you say will appear in the notes of that expert and be presented in court.
3. Appointed experts
Sometimes the court appoints a single expert to investigate an issue and make a report to the court. At other times both sides agree to hire the same expert. Deal with an appointed or agreed expert the same way you would deal with the other side's expert.
C. Your Children
Your children are the most important other family members with whom you will have to deal in the course of your divorce. Don't talk about the details of the case with them and don't use them to carry messages to your spouse. For additional thoughts about children, see Chapter IV (Children).
Friends, neighbors, teachers, and business colleagues usually prefer not to get involved in your divorce. Acting as a witness, either by deposition or in court, is an imposition on their time, their energy, and often their livelihood. Be considerate of them and don't try to pressure them to color their testimony. The most effective witnesses appear not to be biased for either side.
E. Psychotherapists and Members of the Clergy
Usually what you tell these people can't be used against you in court. But rules vary from state to state so talk to your lawyer. See Chapter X (Confidentiality).
Although friends and relatives can be a valuable source of moral support during your divorce, there are risks in discussing your case with anyone other than those professionals whose job it is to help you through it. People with a little knowledge may believe they can give you better advice than your lawyer who has years of training and experience and knows your case. The law that applied to in your friend's case may have nothing to do with your case or may have changed since your friend's divorce. Furthermore, even a trusted confidant could become a witness against you.
G. Some Questions and Answers about Clients' Relationships to third Parties.
Why can't I use my regular accountant as my expert?
Some specialists are very good in their field, but do not make good witnesses. Moreover, they are handicapped by lack of knowledge of divorce law and procedure. You might have great confidence in the accountant who has prepared your tax returns for many years. However, if those were joint returns, that person may have a conflict of interest which could be an obstacle to taking your side in your divorce. Also, your accountant may appear biased because of the past relationship and need for your future business.
My friend who got divorced got x result. Will I?
Friends who have been divorced can raise unrealistic expectations. Every case is different, and what happened to your friend is almost always irrelevant to your case.
One of a lawyer's most fundamental ethical obligations is to maintain the confidentiality of client communications. With few exceptions, some of which are noted below, your lawyer cannot voluntarily reveal anything learned while representing you. These rules exist so you can tell your lawyer the whole truth without fear that what you say will later be used against you.
Direct communications between you and your lawyer are protected by the attorney-client privilege. This means that not even a court can make you or your lawyer tell what you have said or written to each other. Information that your lawyer obtains from documents or people other than you cannot be voluntarily revealed, but may in some cases be disclosed if ordered by a court.
But be aware that the attorney-client privilege can be lost if someone other than you and your lawyer (or your lawyer's staff) hears or reads what you and your lawyer say or write to each other. There are many ways in which your privilege can be waived by disclosure of your confidences to persons other than your lawyer: for example, talking to your lawyer in the presence of a third person not on your lawyer's staff; telling others what you have discussed with your lawyer; and allowing others to read correspondence between you and your lawyer. If you bring a friend or relative with you to your lawyer's office for moral support, your lawyer may ask your friend or relative to wait in the reception room in order to preserve the privilege. Because the rules regarding confidentiality and privilege vary slightly from state to state, you should never discuss confidential information about your case with anyone other than your lawyer without first checking with your lawyer.
There are also several exceptions to your lawyer's duty not to reveal client confidences. A conversation in which a client tells a lawyer that the client intends to commit a crime or, in some states, a fraud, is not privileged and the lawyer could be forced to testify in court about the conversation. The privilege may also be lost if you or one of your witnesses commits perjury and in other circumstances which you should discuss with your lawyer. Also, if a lawyer is accused of wrongdoing by the client, the lawyer may reveal confidential information necessary to defend against the accusation.
Confidential information provided to others may also be revealed during divorce proceedings. Psychologists, therapists, public officials and others may be required by law in your state to report suspected child abuse. Judges may report suspected tax fraud to the Internal Revenue Service. Financial, medical, and psychological records may be subject to subpoena. In summary, your right to privacy may be diminished during a divorce.
XI. DOMESTIC VIOLENCE
Domestic violence includes beatings, threats, stalking, other forms of intimidation, harassment, neglect, and physical, emotional, and sexual abuse. Domestic violence may include any act by one family member that causes physical or emotional harm to another family member.
B. The Harmful Effects of Domestic Violence
In addition to the obvious immediate trauma caused by violence, domestic violence has long-term, far-reaching harmful effects on all members of the family. The lifetime harm to children is well-known.
Even when you decide to get help, being involved in domestic violence can make it harder for you to relate to your lawyer or others who might be able to help you. Domestic violence has long been considered a private matter, not to be discussed outside the family. Reluctance to talk about these problems is a direct result of the feelings of guilt and fear experienced by members of families marked by violence. It is ironic that even the victims of domestic violence, who have done nothing wrong, feel guilty about it.
In some states, domestic violence may be a ground of fault in the divorce proceeding. In others it affects only child custody and visitation.
The two most important points to remember about domestic violence are:
If you are committing it, stop!
If you are a victim of it, get help!
C. Tell Your Lawyer
Although it is hard to discuss domestic violence that you have been involved in, it is most important that you tell your lawyer about it. Your lawyer can't help you unless the full extent of the violence is disclosed. Your lawyer can help you find remedies and resources, but only if the lawyer knows about the problem.
D. What Can Be Done?
As difficult as domestic violence is to deal with, help is available and your lawyer can help you find it. Here are some potential resources.
Many cities have public and private agencies that provide shelters for battered spouses (usually women) and children. Since victims of violence fear that more violence will result from leaving the home, the locations of the shelters are kept secret. Many such agencies also provide counseling and legal help when the victims cannot afford to pay for such services.
2. Restraining orders
Legal procedures are available. Courts can order that the perpetrator of domestic violence move out of the family residence. Restraining orders can be made which may be enforced by the police. The courts of many states have simplified procedures for people to get court orders against domestic violence. Sometimes these procedures are designed to be used by persons unrepresented by a lawyer if they cannot afford one. Forms and instruction booklets are sometimes available from the court clerk.
3. Criminal prosecution
If you are the victim of domestic violence, a report to the authorities for possible prosecution may be appropriate. Sometimes the victim of domestic violence is reluctant to report the crime to the authorities for fear of the consequences of sending the other spouse to jail. Often, the perpetrator of the violence is the sole support of the family and fear of being without money to live on stops victims from making a criminal complaint.
In some states, spouses have the right to sue each other aside from a divorce proceeding. If you have been involved in domestic violence, talk to your lawyer about the possibility of a separate lawsuit. Deadlines called statutes of limitation apply to such suits so that unless they are filed within a certain time (sometimes as soon as a year or less from the date of the act), you lose your right to sue.
Usually the only remedy available by civil lawsuit is money damages. The prospect of a judgment for civil damages can affect the settlement negotiations in the divorce case. It can also be a deterrent to further violence.
If you have committed an act of domestic violence, you will want any divorce settlement to include a release of all civil claims for such acts. Your lawyer needs to know about them so they can be included in the release.
Domestic violence is usually a symptom of deeper problems. It is very difficult to treat or cure, and usually requires extensive therapy for the perpetrator as well as the victim. Agencies are available in most cities that can provide therapy according to ability to pay. Your lawyer can recommend a therapist.
E. Reporting requirements
In some states domestic violence towards children must be reported by lawyers to child welfare authorities. The usual confidentiality of conversations with your lawyer may not extend to child abuse. In some states, physicians, psychotherapists, and public officials are required to make a report, but not lawyers. A report of child abuse can lead to criminal prosecution and even placing the child in a foster home or public facility.
XII. ATTORNEY'S FEES AND COSTS
It is important to both you and your lawyer that you talk about fees and costs at your initial conference. Unless fees and costs are discussed, either of you might make incorrect assumptions about what the other expects. False assumptions can lead to misunderstandings which can harm the lawyer-client relationship.
If you are concerned about the cost of your divorce, discuss with your lawyer how much you can afford to pay, how extensive the lawyer's work needs to be, and any limits you think should be placed on fees.
If you feel you can't afford the fees of the lawyer you consult, say so and ask for the names of other lawyers or agencies that can handle your case. You should make an agreement to pay fees only if you know you will be able to honor it.
Fees charged by lawyers vary from state to state and community to community. Some arrangements are the: retainer, hourly fee, contingency fee, engagement fee, bonus (or results accomplished) fee, and flat fee. These terms are described in the Glossary.
Fees are based on many factors including the complexity of the case, the skill needed to perform the service properly, whether agreeing to represent you requires your lawyer to turn away other clients, the amount involved, the results obtained, the experience, reputation, and ability of your lawyer, the time limitations you impose, and the circumstances under which the services will be performed.
C. Written Fee Agreements
Your lawyer should ask you to sign a written fee agreement. You are entitled to an opportunity to review the fee agreement, to think about it, and to get answers to any questions you have about it. You should read and understand it. Once you sign, the fee agreement is a legally binding and enforceable contract.
D. Costs And Expenses
Different law offices have different procedures for handling costs and expenses. Those procedures are usually described in a written fee agreement. You may be responsible for paying out-of-pocket costs incurred for your case by your lawyer, such as photocopies, postage, long-distance calls, court filing fees, process servers, court reporters, computer time and similar expenses. You will be responsible for paying any experts that you and your lawyer decide to hire. If you have questions about costs, ask your lawyer.
E. Security for Payment
Your lawyer may ask you for security for payment of fees and costs in the form of a mortgage on your real estate or a lien on your property. You should carefully review and understand the security agreement and other papers. It is a good idea to review them with another lawyer before signing them. Similarly, your lawyer may ask you to have a friend or relative guarantee payment of your fees. Be sure that the details are thoroughly discussed and that you and the guarantor both understand the papers before signing them.
F. If You Find You Can't Pay According To Your Agreement
1. Work with your lawyer to solve the problem.
Talk to your lawyer. Most lawyers will try to resolve fee problems with clients and often something can be worked out that will satisfy both of you. Your lawyer may want some security for payment (if permitted in your state), a promissory note, or a regular payment schedule. You might be able to borrow from friends, family or an institutional lender.
There are many ways to handle a divorce. If you have instructed your lawyer to do everything possible on your behalf, you might rethink the cost of your strategy. If you revise your instructions so that your lawyer does only those things essential to your proper representation, your fees and costs may be less.
2. If you can't resolve the problem after talking to your lawyer, here is what might happen.
Your lawyer might withdraw from your case.
Some states allow a lawyer to have a lien against your property or files until the fees have been paid. Even the states that allow liens have strict rules about how they can be enforced. Before you find yourself in this situation, you should ask your lawyer to explain the rules and procedures to you. You might also want to consult another lawyer about your rights and responsibilities as to such liens. Most states require lawyers to turn over all of the client's papers to the client when withdrawing from a case.
If you and your lawyer can't resolve a fee dispute, you might agree to take the dispute to a mediator. A mediator is a person who meets with both of you and tries to help you work out a settlement, usually by reaching a compromise.
Arbitration is presenting your case to someone other than a judge who has power to decide the case. An arbitration award can be made into a court judgment and enforced. Your written agreement with your lawyer may contain an agreement to arbitrate any fee disputes. Some states provide you the right to arbitrate even if it's not in your fee agreement. Arbitration can be faster, simpler and cheaper than litigation in court.
If you do not pay the fees you have agreed to pay, the lawyer has a right to sue you for the unpaid fees. In that event, the dispute will be decided by a judge or jury. Many lawyers will only sue a former client as a last resort.
G. Some Questions and Answers About Fees and Costs
I don't want the divorce; why do I have to pay for it?
We all have expenses for things that happen to us that we don't bring on ourselves. We don't ask to get sick, but if we use health care professionals, we have to pay our medical bills.
If you are involved in a divorce and choose to be represented by a lawyer, you must expect to pay for those services.
2. Why do lawyers charge the fees that they do?
Lawyers are professionals who run a business with all the usual overhead. Supply and demand influence legal fees as they do the cost of most things. So lawyers who are in greater demand generally charge higher fees.
3. How much will my divorce cost?
It's impossible to predict how much your divorce will cost, although your lawyer may be able to give you a range. The cost of the case depends on many factors, some beyond your lawyer's control. These factors include the kind of lawyer your spouse hires, how you and your spouse behave in the litigation and the court to which your case is assigned. Generally, the more things you and your spouse can agree on, the lower your fees will be.
4. Is there anything I can do to help keep the fees down?
Yes. Be actively involved in your case. Take the time and trouble to learn what's going on. Follow your lawyer's instructions. Volunteer to help with the work whenever possible. Have reasonable expectations of your lawyer. Watch for ways to settle issues. Don't insist on fighting to the last drop of blood over small issues, or for a supposed principle. When talking to your lawyer, avoid long, detailed stories unless your lawyer assures you it's necessary information.
5. Can I make my spouse pay my fees?
A court may order a spouse to contribute to the fees of the other spouse. If you get such an order, your lawyer will credit what is actually paid to your account. But seeking such an order does not change your obligation to pay the balance that you owe to your own lawyer. Also, many lawyers do not accept cases on the possibility that the other spouse will be required to pay the fee by court order.
6. What can I do if I can’t afford the lawyer I want?
Just as none of us can have everything we want or purchase things that we can't afford, you may not be able to afford the lawyer of your choice. In most communities, there is a wide variety of providers of legal services. Everyone should be able to find help at a price they can afford. There may even be another lawyer in the office of the lawyer of your choice who is quite competent to handle your case and whose rates are lower. For those who can't afford to pay any fees, free legal aid is available in some areas.
7. Will my lawyer wait until the case is completed for me to pay fees and costs?
Not usually. Each month, law firms must pay their staff, rent, utilities and other operating costs. You can't realistically expect your lawyer to wait until your case is over to be paid. If you do not pay your lawyer when you are billed, the firm may have to borrow money to pay office expenses. If money must be borrowed to finance your divorce case, you should borrow it, not your lawyer. Although some lawyers will wait for part of their fee, especially if given some security, most will expect you to pay your fees as the case progresses, even if you have to borrow it.
8. Why does my lawyer charge me every time we talk on the phone?