By Bruce Matez, Esq.
Divorce is a life altering event for both spouses and their children. How the issues in a divorce are handled, and ultimately resolved, will have a significant impact on the entire family, sometimes including extended family members. It may also impact upon future spouses, significant others, and the children. The emotional and economic impact of divorce is far reaching and can be devastating. The parties’ choice of divorce lawyers is a critical first step which may very well set the tone for the entire divorce process.
I not only suggest that you “shop around” for a divorce attorney, I encourage it. Not every lawyer is right for every client; nor is every client right for every lawyer. The fit must work. While you may have been recommended to a particular attorney by a friend, co-worker or relative who had success with that attorney in the past, that may not necessarily mean he/she is the right attorney for you. Sometimes I think people are more careful about choosing their auto mechanic or hair stylist than a divorce lawyer.
The following are some general guidelines I suggest when you consider hiring a lawyer to represent you in a divorce.
Trust is the basis of every relationship
Above everything else, you should hire a divorce lawyer whom you trust. Remember that this person is going to help you make decisions that will affect your family for the rest of your lives. Trust is a key ingredient to a successful attorney-client relationship, especially in divorce cases. However, do not trust blindly; be wary of lawyers who will tell you what to do. A lawyer should advise you of your options and what he/she perceives to be your best option but should never tell you what to decide or decide something for you. I am often asked by clients “what would you do if you were in my position?” That is an impossible question to answer so I simply decline to answer it. I advise my clients that the decisions they make in divorce litigation or settlement negotiations must be made on an informed, rational and intelligent basis, but by THEM, not me. It is their life, not mine and, quite frankly, I am not in their position and can really never put myself in their position. Remember: after your divorce is settled, it is you who has to live your life. Your lawyer goes on to represent his/her other clients. You have to live with whatever settlement you agree to or any decision made by a judge, possibly for the rest of your life.
Do your due diligence
Just because a lawyer has been practicing law for 25 years does not necessarily mean that he/she is a good lawyer, and certainly does not mean he/she is the right lawyer for you. Get several references. Find out everything you can about the attorney. Google him/her; check him/her out online on Avvo, Linked In, Facebook, and other business or social networking media; do some research. Do not rely on just one referral and certainly don’t rely on publications like “Super Lawyers” or “Best of…” magazines. Generally, those designations are not reliable and are not based on any objective criteria. Ask other lawyers. Ask around. Most good family law (divorce) attorneys are known in the community; don’t be afraid to ask questions and get information. Remember, you are putting life altering issues in the hands of this person.
Competence can’t be faked
A competent divorce lawyer should have a solid knowledge of family law and familiarity with the local practices in the county in which your divorce will be filed. He/she should have experience, be an effective negotiator, have good writing skills, have empathy for his or her clients, and have the ability to think “on his/her feet.” People often do not check out a lawyer’s ability to do these things and only listen to what the lawyer is telling them at the initial consultation when their mind is clouded with anxiety and they are not thinking clearly. Many lawyers “dabble” in the area of divorce. Some are competent in family law, some are not. Some lawyers practice only in the area of family law. An attorney who concentrates his/her practice in family law is a much better alternative to a generalist who handles auto accidents, slip-and-fall cases, criminal cases, etc., and who handles an occasional divorce. If you need brain surgery, you wouldn’t go to a general surgeon; you should treat your divorce just as seriously as a bodily injury or illness and use a specialist.
How many cases have you won?
It is important to understand that success in divorce litigation is not measured by winning or losing. When potential clients ask me how many cases I have won, my response is that I have settled divorces for most of my clients and consider every settlement a “win.” It is rare that one party “wins” after a trial. Generally, after a trial each party wins on some issues and loses on other issues. However, it is generally accepted and understood by those who work in this field both for the court and the lawyers that BOTH parties lose on so many levels, not just financially, if the case has to be tried before a judge.
The comfort zone
Choose a lawyer with whom you feel comfortable. Listen to your gut. You are going to spend an inordinate amount of time together with your lawyer in person and on the telephone while your divorce is pending. Make sure that the person you choose is someone with whom you will feel comfortable spending time. The divorce process is hard enough without having to feel uncomfortable about being around or with your attorney. Be sure that your personality and that of your attorney are compatible.
Shark or chameleon?
Many people choose a lawyer because he/she has a reputation for being a “shark.” Be careful what you wish for I think the most effective lawyers are those that combine tough and skilled advocacy with effective negotiation skills. Most divorces can and should be resolved between the parties or the attorneys by settlement, without extensive and expensive litigation. Often when one party hires a “shark,” both parties end up spending much more than they should in legal fees. Unless your case involves an extreme situation, or you have unlimited funds and want to waste them fighting your spouse for emotional reasons, there is no need to hire a “shark.” Most cases have a range of settlement possibilities and will settle within that range. Ninety-eight per cent of divorce cases in New Jersey settle before trial. Those that do not settle, often end up with results after trial which are still within that same range of the settlement possibilities. Some lawyers are “litigation” minded and will engage the parties in the “fight.” Other lawyers, like me, believe in attempting an amicable resolution, even in the most difficult of situations, but are also excellent advocates who can litigate effectively when the need arises. It is important that you figure out what type of lawyer you want and what your ultimate goals are. I strongly believe that you will likely end up with a similar result whether you fight, fight, fight and spend many tens of thousands of dollars on an aggressive attorney or you negotiate effectively with an attorney who is a skilled negotiator, but also has excellent writing and oral argument skills to present your case strongly to the assigned judge. You don’t need a “shark” to win.
Who’s your lawyer?
If you are choosing a lawyer who works in an office with other divorce attorneys, make sure you have an understanding up front as to who is going to handle your file. Is the lawyer with whom you consulted going to handle your case, or an associate? Ask questions about how this works, and ask to meet the associate, if that is the case. All too often I hear complaints from a potential new client that he/she hired attorney X, a partner, but the case was pawned off onto a younger, less experienced associate. Younger, less experienced associates can often develop into excellent attorneys, but you have a right to decide who represents and who is right for you. Exercise your right and find out at the initial consultation how cases are assigned within the firm. Insist on honesty and candor from your prospective attorney.
Keep your eye on the finish line?
It is essential that you understand your options and that you make an informed and responsible decision in retaining a lawyer. Take some time to consider what is your ultimate goal. Think about what type of lawyer you want to hire and what makes sense for you and your family. By nature we are all bargain hunters, shopping around for the best deal or the lowest prices. We haggle for a better deal on our cars; we attend department store sales in droves; we wait for things to go on sale to purchase them. Let’s face it, who doesn’t love a bargain? Many have learned, unfortunately the hard way, that the old saying is true; sometimes “you get what you pay for.” The same is certainly true for lawyers. First, there are many lawyers who give “free consultations.” Beware! A good, effective, appropriate divorce consultation should be at least two hours in length and you should pay for the lawyer’s time as you would consulting with any professional, whether it be your doctor or your accountant. Do you work for free? Often lawyers who provide free consultations are looking for clients. Beware! Also, there are many lawyers who will charge a smaller retainer and lower hourly rates in order to entice clients to retain them. Generally, a divorce has a basic range of fees and costs which are based upon many factors such as the legal issues to be resolved, the complexity of the facts and legal issues of the case, the other party’s attorney, the judge assigned to the case, the willingness of the parties to be reasonable with each other, the emotions of the parties, the need for revenge or retribution of one or both parties, as well as countless other intangible factors. The ultimate cost of the divorce in terms of legal fees will be approximately the same whether the lawyer seeks a $1,500.00 retainer or a $25,000.00 retainer. Most often, it is a matter of paying up front or paying later. Don’t be misled into thinking that your divorce will be a lot cheaper just because the lawyer only asks for a minimal retainer compared to what other lawyers require to start a case. Also, keep in mind the psychology of settlement; do you want to be in a position of feeling like you have to settle for something you don’t think is fair because you owe your attorney a lot of money at the time the settlement is proposed and you are going to incur even more fees and costs if you don’t settle? While the financial burden of a divorce is often a significant motivating factor in settlement, when you owe a lot at the time you are making these important decisions, that factor will weigh heavily on you as you decide whether or not to settle. View the hiring of your divorce attorney as an investment in your future.
Be wary of lawyers who:
Tell you they will take care of everything and not to worry.
Promise or guarantee you ANYTHING by way of the outcome.
Tell you what you will and will not get.
Tell you how much your divorce will cost you (unless charging you a flat fee).
Low-ball their fees and retainers.
Tell you what to do.
Tell you they know what is best.
Don’t have you sign a written fee agreement (required in New Jersey).
Try to hard sell you on them.
Choosing the right lawyer for you is essential to having a successful divorce. It is a choice you may live to regret but may live to revere or cherish. Make the right choice from the outset and it can make all the difference.