With the changes in family law over the last 30 years, including the adoption of equitable distribution in place of the old common-law rules, the adoption of laws protecting military spouses, and the adoption of support guidelines and various local rules promulgated within the various circuits, the area of separation and divorce has become much too complicated and specialized for someone who does not regularly handle these types of cases. It distresses us when clients come to us with poorly drafted separation agreements, and/or decrees which other inexperienced attorneys have handled. Just as it is better to win at trial than to have a great appeal issue, it is much better to have the right attorney, one who will get it right the first time, than to have to pay someone to fix problems stemming from errors made in the first place. Sometimes the errors are very costly and cannot be fixed as shown in the series of articles I wrote for The Family Law News, a peer review publication of the Virginia State Bar, Section of Family Law, entitled “Costly Errors in Multi-State Military Divorce; Or a Military Wife’s Tale of Woe,” which are published in the Fall 2007 and Spring 2008 issues of the publication.
The series of articles outlines the legal authorities, strategy and procedural points we used to successfully defend a military retiree, who was a veteran of the Vietnam War. His ex-wife was attempting to obtain half of his military retired pay and spousal support here in Virginia, despite having divorced him six years earlier in Hawaii. While we are always happy to achieve a successful outcome for our clients, we felt sorry for the ex-wife, who had received poor legal advice from hr attorney in the original divorce action in Hawaii, advice that lead to poor decisions which the Virginia Court found to bind her permanently. In ruling for us in the case, the judge told the ex-wife that instead of suing her ex-husband, show should go after the attorney in Hawaii who represented her in the divorce.
So, how do you go about finding a good divorce lawyer? Here are a few suggestions:
Suggestion #1-Ask a Lawyer
If you know a lawyer, ask him/her for a referral to a good divorce lawyer. He or she will probably know someone or several someones who devote a significant portion of the practice of law to separation and divorce and related issues. For example, I have been handling separation and divorce for 30 years and have an excellent reputation among the local legal community. Any divorce attorney worth his/her salt should have established a reputation among other lawyers. Lawyers generally know who is good for a particular type of case; they certainly know who they would see, if they were facing separation and divorce.
Suggestion #2-Yellow Pages/Internet
While not a great source of information, the Yellow Pages and internet can be a beginning source of attorney names. Lawyers who do not mention separation, divorce, military divorce, and related areas like custody and support or property division, are not seeking cases in those areas and certainly don’t devote a significant portion of the practice to those areas. Be leery of ads that include a laundry list of everything under the sun. Remember the old saying, “a jack of all trades and master of none”? Wouldn’t you rather have someone who takes the time to focus at least a significant amount of time to family law, than someone who maybe devotes 3% of his/her practice to family law issues? Remember not everyone advertises in the Yellow Pages or haw a website or internet presence.. For example, there are more telephone listings than there are attorney ads in the Yellow Pages.
SUGGESTION # 3-VIRGINIA LAWYER REFERRAL SERVICE
The Virginia Lawyer Referral Service is operated by the Virginia State Bar. Lawyers must ask to get on the list and must agree to a fixed fee for an initial consultation. A lawyer can be listed under any category he/she asks for. The names are on a rotating list and given to consumers who contact the service. Again, not all attorneys are listed. We are not listed with the referral service. This resource can provide the name of an attorney who is seeking family law cases. This does not mean that the attorney is an expert in these types of cases or that he/she is experienced. All it means is that he or she is seeking divorce cases. Be sure to take the questions I talk about here to the attorney interview.
Suggestion #4-Talk to More Than One Attorney
In fact, interview several attorneys. Ask each attorney who else handles separation and divorce in the area. If they won’t give you names, leave the office, when you see names showing up on various lists of recommendations, the odds are probably good that the attorney is doing these cases on a regular basis.
Suggestion #5 – Use a Checklist
I have outlined factors that you should consider when selecting a divorce lawyer.
A. Experience. The longer you have been practicing a particular area of the law, the more you know. There is an old adage that says a good lawyer knows the law and a great lawyer knows the judge! What is the difference between a good lawyer and a great lawyer? Experience.
B. Experience Trying Cases. Has he/she achieved any trial successes for his/her clients? Can the lawyer point to case results or client testimonial reflecting his/her abilities?
C. Are they willing to settle when appropriate to do so? Trial attorneys sometimes suffer from a hired gun mentality. They like the thrill of trying cases and may not consider other options, such as mediation or arbitration to achieve a resolution. Most good divorce attorneys do not adopt this approach, but see trial as a last resort, when other options have failed to precipitate a fair resolution of the issues. Unlike other areas of the law, family law often entails ongoing relationships and consequently requires a different perspective. I recently read an article by a personal injury attorney, who was writing on how to choose a personal injury lawyer. He said not to choose a lawyer who settles a lot of cases. When it comes to separation and divorce, I believe it is important to try to reach an agreement, if you can.
Going to court about family law unless you have to is like using a sledge hammer on a flea problem; you may kill a few fleas, but you wreak a lot of damage to the structure of the house, too. When individuals settle their own cases outside of court, they can be a lot more creative than the court would be in fashioning a remedy that is fair to both parties. Sometimes, agreement is just not possible. When that is the case, you want an experienced able divorce attorney who can advocate for your position in court and has a proven track record of success.
D. Respect in the legal community. What are other lawyers saying about this lawyer? Has the lawyer lectured or taught? Has he/she taught other lawyers?
E. Publications. Has he/she written anything that has been accepted for publication in legal journals? This is another sign of respect for the lawyer and for his/her skills and experience. Has he/she written or published anything designed to educate the public as to their rights duties and responsibilities under the law?
F. Affiliations and memberships. What professional affiliations does the attorney have? Is he/she a member of the Family Law Section of the Virginia State Bar Association? A member of the Virginia Trial Lawyers? A fellow of the American Academy of Matrimonial Attorneys?
G. Does the attorney limit the number of cases he/she undertakes? We don’t take every case that calls in or walks through the door. We limit the number of cases that we undertake to handle at a given point in time so that we an focus on doing the best job for those clients.
H. Relationship issues.
1. How was the telephone answered when you called for an appointment?
2. How were you greeted when you entered the office? Were you offered refreshments?
3. Did the attorney and staff listen to you? Are you sure? Could you tell they were listening?
4. Were you interrupted during your time with the lawyer?
5. Does the attorney use written agreements setting out the parameters of the representation and the financial arrangements?
6. One of the most important aspects of choosing a lawyer is the relationship aspect: you need to be able to work effectively and comfortably with your lawyer. The relationship requires intimacy and trust. Do you feel comfortable with the attorney?
7. Were you introduced to staff?
8. How long does the attorney retain files on closed cases? What happens to the closed file? How is it disposed of? What steps does the attorney take to safeguard your confidential information?
I. Why does he/she practice divorce law? Friends and colleagues think I’m crazy to devote so much time to separation and divorce law. They may be right, I just may be a little crazy. But like the song says, “it just may be a lunatic you’re looking for.” When interviewing a potential divorce lawyer be sure to ask him/her why they choose to practice family law. Does the lawyer have a life experience that allows him/her to advocate for divorce clients with genuine passion? Is that passion something that is reflected in client testimonials?
J. Cost. Unlike personal injury practice, the best divorce lawyers do not offer “free” consultations. You will notice that cost is last on the list. In our experience, the best divorce lawyers are generally not the cheapest. In the long run, what is it worth to you to retain or acquire your fair share of the assets that have been accumulated over the course of your married life? What is it worth to you to insure that you retain your fair share of time with your children? Some things are worth fighting for and worth the price that you have to pay.
If your attorney does not devote a significant portion of his/her practice to family law issues, has never tried a contested divorce, has never tried a contested custody case or who has never tried an equitable distribution case, or drafted a qualified domestic relations order dividing a pension, or who has no experience in military divorce and has never drafted a military retired pay order, you may want to choose another lawyer for your separation and divorce.