More and more people are filing for divorce themselves, without lawyers. But most people do need legal advice on at least some aspects of their divorce. And, sometimes, couples can’t agree, and the divorce turns into a fully contested, litigated divorce. So how do you find the right divorce attorney for you?
The challenge is often knowing where to start. You’re unfamiliar with the legal system in general and with domestic relations, in particular.
You’re overwhelmed by the end of your marriage and don’t know enough about parenting after divorce or divorce financials to know if something is an issue or an obstacle.
And, you’ve had little experience dealing with attorneys so it’s hard to know who’s going to do a good job or even what is a good job!
You ask your friends, family and coworkers for referrals but that may not be a great choice. Your situation is likely different from theirs. What worked or didn’t work for them will be different for you.
What you need to do is make an informed, well-researched decision. How you do that is the topic for this Conversations About Divorce. Joining me are Kelly Frawley and Emily Pollock, New York-based matrimonial and family law attorneys and partners at Kasowitz Benson Torres LLP.
Listen in below or keep reading
Know Your Options For Working With A Divorce Attorney
Before you even start looking for the right divorce attorney, there are different ways that you can work with a lawyer. These vary by state so you might have to do some digging for what’s available in your state.
When you’re working without an attorney representing you, it’s called “pro-se.” But pro-se doesn’t have to mean not getting legal advice.
In Colorado for example, many lawyers will offer a consult on a specific topic. This is referred to as “unbundled” or “a la carte.” There’s also “limited representation” where an attorney will represent you in court for a specific hearing, such as a temporary orders hearing.
Pollock says those are not options in New York City where she and Frawley practice. If you are pro-se, then it’s difficult to have an attorney in the background.
“We, as attorneys are not really permitted to kind of be the wizard behind the scenes advising you,” said Pollock.
“In New York City, once you’ve appeared formally in a case, it is very difficult to be relieved from the case,” said Frawley. Even in some circumstances where your client wants you to be relieved, the judge can tell your client that it’s not something that the court will be happy with because it could result in a delay in the proceedings.”
The typical mode in NYC then is “full representation.” This is where you retain an attorney and they handle all aspects of your divorce. This would apply elsewhere where the divorce is being contested or where there are complex financial or parenting issues.
Do Your Research First
Let’s say you’ve been given the names of some attorneys. Before you schedule an initial consult with them, do some research. This is an easy first step to eliminate people who are clearly not a good fit. You won’t be wasting your time or money, since many lawyers do charge for these consults.
Ask the person who is giving you the referral, why they are recommending this person.
“That can tell you a little bit about their reputation and what you should expect going in,” said Pollock.
You might learn that the attorney has experience in a particular matter or with the courts where you’ll be filing. You might also learn that they’re compassionate or very aggressive.
Next step is to do an internet search. Check their listings on any legal websites like your state bar association and the attorney’s own website. Pollock recommends working with an attorney who really is a matrimonial lawyer and not a tax attorney who sometimes does divorce.
An internet search will also bring up any published articles or books. These will give you insight into their areas of interest and expertise as well as their approach.
The Questions You Must Ask
Rather than diving into the specifics of your case, start by asking questions that will hep you with the big picture. For example:
- How should you be preparing for the divorce process?
- Do they know your spouse’s attorney?
- If so, what sort of relationship do they have?
Finding attorneys that don’t know each other is going to be challenging in small communities. Even in larger communities, you can expect an attorney who does mostly divorce to have worked with many of the other lawyers in the area. Knowing each other isn’t a bad thing.
“Clients are often very concerned abut attorneys knowing each other,” said Pollock. “In reality, it’s very helpful when attorneys have a baseline of a relationship with each other because it helps them move the case forward productively.”
Other questions to ask include:
- Do they typically represent only moms or dads?
- What sort of issues have they handled?
- What is their experience with the issues in your situation?
What you’re looking for is whether this is a person with whom you can connect and get along.
Keep An Open Mind
If you’re interviewing several attorneys in your quest to find the right divorce attorney, then you have to keep open mind. It’s almost inevitable that you will hear differing opinions about how to approach your case or likely outcome.
Somehow, you need to determine if what you’re being told is realistic or what the attorney thinks you want to hear.
It’s always a bad idea to go with the attorney who is telling you what you want to hear. You’ll be going in with the wrong expectations. It’s also quite possible that you’ll have to switch attorneys mid-way through your proceedings.
With Whom Will You Be Working?
Asking with whom you’ll be working might seem an odd question for an initial consult. After all, it could be a safe assumption that the person you’re meeting with would be your primary contact. However, Frawley says it’s not uncommon for a more experienced attorney to handle the initial consult and then for an associate to be the primary contact.
This could be an issue if you really clicked with the person in your initial consult and don’t have the same degree of confidence with the associate.
“You shouldn’t hesitate about asking to meet with person who will be handling the day-to-day on your case,” said Frawley.
How Many Divorce Attorneys Should You Interview?
Standard advice for finding the right divorce attorney would be to interview several. I think this helps you to better understand how the divorce process works and will also alert you to issues you perhaps haven’t yet considered.
Frawley said you shouldn’t feel compelled to interview multiple attorneys, especially when each consult will be costing you.
“I think when you meet the right one, you’re going to know,” said Frawley. “It’s sort of like dating a little. You can go out for coffee with somebody and you just click. That same instinct should be brought to the table when selecting your matrimonial attorney.”
Once you’ve consulted with an attorney then that attorney is “conflicted out” from meeting with your spouse and vice versa. That makes sense. During the consult you may have provided them with confidential information you wouldn’t want used against you in your case, should you decide not to work with that attorney.
Unfortunately, if you are in a high-conflict situation, then your spouse may adopt an approach to call all the prominent divorce attorneys in your area to intentionally create a conflict, so you have fewer choices about who to use. The risk of this means you should act sooner rather than later. Don’t delay finding the right divorce attorney for you.
Initial Consults Are Not Free
It is common practice to charge for an initial consult. Such charges may be a flat-rate or may be by the hour.
Frawley says that one reason for the charge is to try to prevent potential clients from shopping around from lawyer to lawyer and potentially conflicting out their spouse.
The old adage, “you get what you pay for” probably applies here too. If you’re paying for the consult, then you should expect to get meaningful guidance. If the consult is free, then you may get less out of the time.
“If you have a prenuptial agreement, you can send that to us. If you have specific concerns about an issue, we can do a little preliminary research on it before we meet,” said Pollock. “We want to make sure that the consultation is going to be a productive use of your time.”
Should You Take A Friend?
Given the trauma and overwhelm of divorce, people often want to take someone else with them to the initial consults. There are pros and cons to this.
“If you do have somebody else there with you, attorney-client privilege will not apply to the conversation you have,” said Pollock. “To the extent that you’re providing information that you wouldn’t want the other side to know, that’s something to be aware of.”
Another caution is that these consults are intimate conversations about why your marriage is not working. For the consult to be meaningful, you need to be brutally honest and frank with the attorney. That sometimes means sharing things that you may not have shared with friends and family.
On the plus side, having someone else who can keep track of the information, take notes and help you evaluate the different attorneys can be exceedingly helpful.
Red Flags For The Wrong Divorce Attorney
We all have our pet peeves that put us off people and it might be tempting for you to disregard these when making your choice. But this is the time to listen to your instincts.
An easy red flag for Frawley is if the attorney looks at their phone during the consult.
“If they are doing that when they’re trying to secure your business, what’s going to happen when they already have it?” said Frawley. “It means they’re not focused on you. They’re not paying attention to you. They’re going through the motions.”
Other red flags include:
- Difficulty scheduling the consult. Whether it’s because they are non-responsive or their availability, it could be an indicator of what it will be like when you’re a client.
- Any tardiness. If everyone is waiting for your attorney to show up, it costs money and maybe your case isn’t that important to them.
- Not being realistic and telling you what you want to hear.
“There’s only so much variation in terms of what can happen in a case,” said Pollock. “There are best case scenarios and worst-case scenarios. What will actually happen is probably somewhere in the middle. I think people should be guided by their instinct of somebody is selling them a lie that they are not going to be able to deliver on.”
Do You Really Want A Bulldog Or A Pitbull?
We can’t talk about finding the right divorce attorney without talking about bulldogs and Pitbull’s. Sometimes people say they want to find the most aggressive attorney because they are in or anticipating an ugly fight with their spouse.
My own take on this is that having a reputation for being a bulldog doesn’t necessarily mean being an excellent attorney. It usually doesn’t equate to being held in high regard by other attorneys or even judges. The best outcome isn’t guaranteed by using this type of attorney. Other attorneys may refuse to take on a case where the Pitbull has been retained because the tactics make for notoriously long, drawn out proceedings which equate to $$$$.
There’s a difference between being a bulldog and being smart and aggressive.
“Sometimes you have to be aggressive where there’s domestic violence, if the kids are somehow endangered or maybe somebody is wasting money” said Frawley. “If you don’t move quickly by going into court, you’re going to risk serious harm to yourself and to your own children.”
But one size does not fit all and attorneys need to tailor their approach to each case because being aggressive across the board is destructive.
“It’s not uncommon for people to be angry and it’s easy as a lawyer to facilitate that anger, to help ratchet up the hostility in litigation,” said Pollock. “Ultimately, that’s just a disservice. The process is more expensive, it takes longer and it just capitalizes on negative feelings.”
Ultimately, you want someone who is a strong advocate for you and who can create the environment for productive settlement discussions.
“The really hard job of being a matrimonial lawyer is settling a case,” said Frawley. “It’s much easier to try a case than settle a case.”
My guests for this Conversation were Kelly Frawley and Emily Pollock, New York-based matrimonial and family law attorneys and partners at Kasowitz Benson Torres LLP.