Attorney Selection, Personal Education and Divorce Agreements
I get a good number of calls asking me for a referral to an attorney.
I’m often either referring or taking people to see an estate attorney – since estate planning is a big part of our practice. I rarely get a request for a bankruptcy attorney – and there are over a million bankruptcies each year. Of course, when I do get a bankruptcy call, we talk about it, the caller and I. I believe there are no long-term lessons learned in taking the easy way out. I find most people who are looking to declare bankruptcy have not pursued any other options – well, they think they have, but not really. It is a big mistake to see an attorney before doing a little research. Not just about the attorney you are thinking of seeing (you can find them at www.martindale.com) - you need to investigate the process you are thinking of getting yourself into. It is a very easy thing to go to a bookstore or library and read a little.
Bankruptcy attorneys are pretty standard in their charges – and you have to pay them up front or they won’t take your case. After the bankruptcy is filed you are prevented from paying them at all. That’s how the process works. So be prepared to come up with a thousand bucks if you go through with the bankruptcy.
Estate planning attorney range from $250 for a simple will (sometimes less, but be careful who you use) – from $250 to $5000 or $10,000 or more for a comprehensive set of estate documents and the planning that goes along with it. The most expensive is not always the best – but it is critical that you get good advice. After all, you’ll be dead when any signs of incompetence of the attorney’s drafting shows up – too late to do anything about it.
By far, the most requests I get for an attorney referral are for divorce or family attorneys. It seems that a good one – who is taking new clients – is hard to find. Divorce and divorce attorneys can be scary – more tomorrow.
Here are some jobs where the constant negativity, sadness or hopelessness makes it easy to burn out.
Claims adjuster (in some work areas, unhappy claimants threaten them bodily harm), child protective worker, divorce attorney.
I get more calls looking for a referral to a divorce attorney than any other kind. Certainly the number of divorces is tremendous, but that’s not the reason. I think it’s because 1. People are in terrific emotional pain and don’t know where to go 2. Divorce attorneys have a bad reputation – some deservedly so. Many are better at increasing their billings than getting a case settled. Some even like to stir things up – to make the litigants angry so they fight more. Then there are stories about divorce attorneys who don’t get the proper paperwork filed. The QDRO splitting retirement assets has to be done the right way or someone could end up paying a lot of money in financial fees – or lose money due to market fluctuations while the paperwork is sitting on someone’s desk. We saw this happen several times in the past couple of years – and one even last week.
Well, people hear these reports from friends and are, naturally, concerned that they don’t get taken to the cleaners or hire incompetent help.
I rarely can give a good referral to a divorce attorney. There are several – very well known - who I know have charged my clients more than $50,000 to do the divorce. There are others who were great but are no longer doing divorce work due to burn out. Then there are those who are practical and knowledgeable in their approach and have the good sense to limit new cases so they don’t burn out.
Maybe it would be easier to find a good marriage counselor?
If you are entering the divorce process, what do you need to know?
There are two sides to every story and if the divorce attorney you are thinking of hiring is saying – that so and so, we’re going to get him (or her) – you should probably keep looking. Getting clients in a fighting mood is a good way to increase revenue.
If you decide to try mediation, make sure you educate yourself on the process and the particulars you will have to make decisions on as you go – otherwise you may find yourself agreeing to something that sound logical but really isn’t. Tomorrow we’ll discuss the ground for changing or getting out of a bad divorce agreement – but it’s better not to have the problem in the first place.
Consider hiring a divorce coach. This could be a friend or an advisor. They can help you do the research and think through your decisions. Try to get your thought processes off of “what she did to me” and onto “this is the law and how do we make this equitable”. Don’t ever think you’ll be better off financially after a divorce. If two can live as cheaply as one – then the reverse is also true.
Here are the four main areas to consider:
Get a book and read it. Divorce in NY is one – but there are others. Make sure the book is written by authors practicing in NY and about NY law. NY tends to be different in many ways and divorce law is one of them.
What if you are divorced and feel you have been treated unfairly?
Reviewing matrimonial agreements is not something I enjoy doing – but sometimes it is the only way to help someone out of a bad situation. I’ve seen some really bad agreements that couldn’t be changed because the party knowingly signed it – often many years ago.
If you are trying to overturn a divorce settlement there are only a few things that may make the court consider taking a second look: unconscionability, lack of representation by independent counsel, procedural problems, lack of full disclosure of finances, evidence of mental distress. The more of these things you can claim the more likely the review.
Unequal distribution of assets is not a cause to reopen a case unless the factors I just mentioned are also part of the situation.
Here are a couple more. Did you do your divorce pro se? Did the court pressure you to settle? Were there erroneous finding in a trail court that an appeals court based their decision on for the final agreement? Did one party to the marriage have control of all the marital assets and income? Did that party’s attorney draw up the agreement? Did you have independent counsel? Were you told to get it and didn’t or were you told you didn’t really need to?
Disclose all your financials. That is one of the big things that can cause the agreement to be overturned – lack of full disclosure. The divorce process is awful enough without having to open it all up again later.
I sometimes wonder if couples knew how awful it would be to get divorced, if they would get better pre-marital counseling – or just make sure they were marrying for the right reasons?
You know that phrase in the marriage vows that says Those who God has joined let no man put asunder – or something like that. Do people’s vows say that just because they are getting married in a church? Wouldn’t it be a great thing to reduce the divorce rate if people actually KNEW God was putting them together in marriage? Instead, people fall in love and it FEELS right – so they get married. Then when the hard times come – and they do in every marriage – where do they turn? To the legal system – go figure.
Wish we all knew then what we know now.
If you are divorced and feel you have been treated unfairly you should be aware of the decision in the divorce case of the Christian’s in 1977. The Court said, in part, “if the execution of the agreement is fair, no further inquiry will be made”.
Yesterday we went over some of the reason a court might be persuaded to reopen a case of divorce. You can find that information at www.planningsense.com or link to the Planning Sense site from WCNY.org.
Courts also consider the circumstances surrounding pre-nuptial or ante-nuptial agreements. Were you represented? Was there any coercion? Was there disclosure of finances? Is there a statement in the agreement that says you were represented or were given full opportunity to seek legal counsel? Be careful what you are signing. The law considers you have read anything you sign. Does the agreement discuss the financial disclosures made? An uneven distribution should be discussed and be made clear that it is not a case for unconscionability.
Don’t sign anything you haven’t read. Don’t sign anything you don’t understand. Don’t just depend on your attorney. Make sure YOU understand everything the document says.