What to ask your divorce attorney…and what their answer should be.
Going to court for divorce or child custody can be an intimidating process, so when you’re looking for an attorney to represent you, there are some basic questions to ask. The outcome of your case will significantly affect some of the most important aspects of your life: your children, your home, your money, and maybe even your career. You need someone to guide you through the process and if you’ve never hired an attorney before, there are some basic questions to ask to tell you if you’re sitting in the right office. And because it isn’t really the question that is important but the answer, you need to know those as well.
Other than family law, what other areas of law do you practice?
If the answer is anything other than “none,” you’re probably not in the right office. There are two reasons you want someone who practices family law every single day. First, family law is a different animal and you need an expert to help tame it. The basics are relatively simple: child support, division of your 401(k), dividing the equity in the house, the best interest of the child standard. Most attorneys who do one or two cases a year can handle those issues. But what about more complex issues like dividing unvested military retirement, temporary orders for custody and support, or multiple states competing for jurisdiction over the issue of child custody. When you case goes beyond “divide by two,” you will want someone who understands the less common issues, and the only place to get that is by making sure your attorney dedicates his or her practice to family law. There are some very good attorneys, who are general practitioners, but because family law is so different than criminal defense or personal injury or real estate law, it takes more than being a good attorney; you need to be a good family law attorney.
The second reason you want someone with a focused practice is because they know the court. When clients ask, “What will the judge decide?” the answer is usually, “It’s family law.” The court has a huge amount of discretion to determine what if equitable or what is in the child’s best interest. Knowing that a court doesn’t like 50/50 parenting time or knowing how a court calculates spousal support can give you a significant advantage in negotiating your case. You lose a degree of control when the courtroom doors shut and trial begins; knowing where the court starts and your best and worst case scenarios can be not only sets realistic expectations, but also helps you know when to settle and when to fight. For example, say a particular magistrate relies very heavily on a Guardian ad Litem recommendation in custody matters. If you get a favorable recommendation, you should probably be willing to take the case to trial because you know the burden to change the outcome lies on the other party; if you get an unfavorable recommendation, you likely want to try to reach a settlement more favorable that the recommendation because you know a trial will most likely follow the recommendation. Knowing this can give you a significant advantage and increase your odds of getting an outcome you can live with.
What will the result of my case be?
The answer you want to hear is, “That depends on a lot of things and there are no guarantees.” While that might not be much of an answer, you definitely don’t want to hear, “I can get you custody of the kids and $X.XX per month in spousal support.” The simple truth is that no one can predict with certainty the outcome of a family law case. It would be easier in a black and white world, but when dealing with things like child custody, spousal support, which party gets to keep the house, etc., everything is gray. The law gives the domestic relations court (or juvenile court, in some cases), the discretion to apply the facts of each specific case to the law and determine what is “equitable.” There is no cookie cutter approach so there a lot of answers that begin “Most likely…” or “It’s possible…” This is because no family law attorney should be setting unrealistic expectations of a sure thing.
Then why are you interviewing attorneys in the first place? Because you need to narrow the wide spectrum of possible results and then you need to put yourself in a position to get closer to your own end of the spectrum. A good family law attorney will tell you what your best day in court is and what your worst day in court is; the more complex the case, the further apart those two scenarios become. You need to know that your lowest possible child support payment is $300.00 per month and your worst case child support payment is $850.00 per month so when you get a settlement offer of $350.00 per month, you take it and run. Or you need to know a particular judge will order you to flip a coin if no agreement can be reached about how to divide personal property.
What you don’t need is to be told what you want to hear and be slapped with a dose of reality at the end of your case; sometimes the truth is that you will have a tough time getting the outcome you want or that it will be very difficult to get custody of the kids. Your attorney should not hide behind promises and unrealistic expectations; they are there to guide you, fight for you, and inform you. You need to know things like the fact that you are probably going to be writing a check to your spouse at the end of the day, that your retirement is going to be divided in two, or that you need to take some very important steps if you plan to buy a house before your divorce is finalized. Very few things are certain in family law, but the more informed you are, the better your position.