What Your Divorce Lawyer Should Be Doing and When
The practice of law is not a science, but it's not exactly an art either. There are certain things your attorney can and should be doing. For some guidelines, refer to the following list:
Your lawyer should have an overall plan for your case. This might simply mean that she plans to meet with your spouse's lawyer within the next month and settle the case, have documents drawn up within two weeks after that meeting, have them signed within two weeks after that, and then submit them to court.
Maybe it means she's going to make an immediate request for support on your behalf and start demanding financial documents, with the goal of having your case ready for trial within six months.
Maybe your lawyer can't say when things will happen because too much depends on what the other side wants; still, she should have a general idea of how the case will proceed from your side given any number of scenarios.
One matrimonial lawyer tells us that clients often seek her out for a second opinion on their case. The most frequent complaint: their case has no direction, they see no end in sight, and it seems like they're always responding to their spouse's action with no overriding plan of their own. One such client eventually terminated his relationship with a lawyer—after five years of delay, during which he waited in limbo for decisions on child custody, child support payments, visitation schedules, and more. Often as not, delays were caused by his own attorney's exhausting schedule as her city's superstar divorce diva. She was on every talk show and in every newspaper, but somehow, in terms of this client, she was unable to do her job.
Early in your case, your lawyer should demand any and all financial documents in your spouse's possession so that you can learn what there is between you to divide up.
If you or your spouse has a pension or any kind of employee benefit, your lawyer should get a copy of the appropriate plan documents and account statements for the past few years. We know of more than one case where the lawyers agreed a pension would be divided up, only to discover that, under certain circumstances, the company had no obligation to pay the pension at all.
Your lawyer should assess whether any experts will be needed in your case. If your wife has a hat-making business she established during the marriage, you might need a business appraiser to estimate the value of that business. Your lawyer should locate a well-respected forensic accountant or business appraiser now for possible later use.
Maybe custody will be an issue, and you'll need an expert to testify on your behalf.
In some jurisdictions, the judge will appoint an expert to report to the court, but you still might need someone to support your case. Your lawyer should start getting you the names of qualified people.
Your lawyer should, under almost all circumstances, tell your spouse's lawyer that you are willing to listen to any reasonable settlement proposal and to negotiate. Cases have been settled on the steps of the courthouse on the day of trial, so it's a good idea to leave the door open at all times.
Your lawyer should promptly respond to letters and phone calls and keep you informed of all such communication. Copies of letters should be sent to you within 24 hours of the lawyer's receipt. He or she should notify you about important phone calls—those concerning settlement proposals, for instance—as soon as possible. If the court hands down any decisions regarding your case, your lawyer should notify you at once.
Your attorney should return your calls within 24 hours unless there's some reason why that's impossible—for instance, if she's in court or in the middle of a trial. On the other hand, you should only call when you have something to ask or something important to say. It's a good idea to write down questions and save them for a few days (unless they are urgent) so you can ask several at once. Some lawyers bill you a minimum of 15 minutes per call, so you might as well take up the time you'll be billed for anyway.
If your case is heading to trial, your attorney, with your input, should begin to interview and line up witnesses as needed. She should be sure to give your witnesses ample advance notice of the trial date.
If your case actually goes to trial, your lawyer should fully prepare you. If possible, you should visit the courthouse and even the courtroom in advance. Your lawyer should review the questions he himself plans to ask and alert you about what to expect during cross-examination.
One attorney we know even tells her clients how to dress on the day they will be in court. (“Go for the schoolteacher look,” she likes to say, “and leave the jewelry and fur at home.”)
Throughout your case, your attorney should give you some sense of whether the law supports your position. No attorney worth her weight will guarantee you a victory, but a knowledgeable lawyer should be able to tell you whether there is a basis for your position and what is likely to happen if the case is tried.
If your case ends with a defeat at trial, or if there are any defeats along the way (say you lose a motion when the judge denies your request for something), your lawyer should be able to provide you with sound advice about whether to appeal or seek reconsideration at the trial level.
More on: Dealing With Divorce
Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.
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