Divorce: A Survival Guide by Dianne R. Ophelia
IX. Attorneys
- How Do I Go About Finding An Attorney?
- Where Can I Get The Money To Hire An Attorney?
- Will My Spouse Have To Pay My Attorney Fees?
- What Is A Retainer Fee & How Does It Work?
- Are There Ways To Limit My Attorney Fees?
- What Documents Do I Need For My Attorney?
- Things Your Lawyer May Forget
- Wrapping Up
1. How Do I Go About Finding An Attorney?
Having the right attorney is crucial to a good resolution of your case. Knowledge and experience
are essential, but equally important is an attorney that you can relate to and to whom you can
communicate your thoughts and desires. Personal referrals are the best source. If you do not know
anyone who can give you a referral, you may want to go to the courthouse and watch attorneys in
Family Court to determine who you feel would represent you well. The local Bar Association also
has a list of referrals as does a referral text known as Martindale-Hubbell, found in most libraries.
Finally, there are always the yellow pages.
Do not just retain the first attorney you meet with, unless you feel very comfortable with him/her
and confident in his/her abilities. Although initial consultations with more than one attorney can
be expensive, it is generally money well spent.
The right attorney will save you money both in attorney fees, and ultimately, what you receive in
your settlement. You will be surprised at how attorneys will have differing views about your case
and the manner in which it should be handled.
Always ask the attorney how many staff members they have and their hourly rate. Family Law is a
“busy” practice with lots of paperwork, document control, calendaring, etc. A good Family Law
lawyer cannot efficiently handle a practice without a good staff.
Ask the attorney for his or her policy for returning telephone calls within a certain time frame,
and whether copies of all documents and correspondence from the opposing counsel will be sent to
you within a certain number of days. Also, ask if it is his or her policy to send a draft of all
important letters, offers and pleadings to you for your comments or corrections before they go to
the opposing counsel.
Finally, depending upon the complexity of your case, look for an attorney who has had several
years of experience and, even better, one that is certified as a Family Law Specialist by the
State Bar of California. To be certified, an attorney must have practiced a certain number of
years, handled a certain number of cases and passed a stringent exam. There are excellent
attorneys who are not certified specialists; however, if you have no other basis of knowing
their abilities, this is a safe method of choosing. Be sure to ask the attorney what percentage
of the attorney’s practice is dedicated to Family Law.
If you have a tight budget and cannot afford the top lawyers in the field, remember to ask if
there are associates who charge less. Oftentimes, a young lawyer will work with an experienced
attorney. The fees are much less; however, you are still receiving the benefit of the years of
experience of the attorney overseeing the associate.
2. Where Can I Get The Money To Hire An Attorney?
You can use community property assets to pay for your attorney. You can take the money out of
a joint bank account, stock account or possibly borrow against the cash value of life insurance.
It is not a good idea to take money out of a retirement account. Doing so will result in taxes
and/or penalties, for which you may be held responsible.
You are also entitled to sell community property if that is necessary to obtain funds for fees.
This could include personal property, leisure items, or any asset that is not essential to daily
living. Be sure to sell the item for a fair value.
You may charge your attorney fees against a joint or separate credit card or line of credit.
The court may order your spouse to make the payments on the debt if his or her income is
substantially higher than yours.
Another possibility, although not common, is to ask your attorney if he or she is willing to
wait for payment of part or all of the fees. An attorney may be willing to do this if there
is “security” for the fees and you are willing to pay interest on the amount due. Security can
come in the form of placing a lien against your house or other real property if you plan to sell
it during your action. Certain rules must be followed by your attorney to do this for you.
Finally, be creative. Often family members, employers or friends are willing to help you out in
this time of need by making a short term loan until your assets are divided and you can pay them
back.
3. Will My Spouse Have To Pay My Attorney Fees?
There are two primary reasons why your spouse may be ordered to pay attorney fees for you.
The first reason is financial need. If your spouse’s income is substantially more than yours,
most likely the court will order your spouse to assist you with your fees. The Judge will,
however, consider your income after the payment of support. If your incomes are fairly equal
after support orders are made, you may be responsible for more of your own fees.
The second reason for payment of fees is as a “sanction.” If your spouse is not taking a
reasonable position in your action or not cooperating with providing information requested,
the court may order them to pay some of your attorney fees. It is often difficult to obtain
an order for fees as sanctions unless your spouse’s conduct is really out of line.
Remember, the court almost never orders your spouse to pay 100% of your fees. Most court
ordered attorney fee awards arc less than the amount you actually incur. Be prepared to pay
some or all of your fees yourself.
4. What Is A Retainer Fee & How Does It Work?
Most Family Law lawyers require a retainer fee. This is a sum of money the attorney asks
for up front when hired. The lawyer then charges fees incurred each month against the
retainer amount. If the retainer fee is used up (your fees incurred exceed the amount
paid up front), you will have to come up with a second or even a third retainer fee,
depending upon the length and complexity of the case.
Your attorney should send an itemized bill to you each month showing what services were
performed and what each service cost. The bill should show how much of your retainer is
left after each month’s charges.
Your lawyer will generally have you sign a Retainer Contract. Read the Contract carefully
because it will tell you how the office charges fees, what services your lawyer will render,
and your obligations as a client. Do not be afraid to ask questions about the agreement.
Lawyers would rather answer your questions up front than have misunderstandings at a later
rime.
Always review your bill each month and if you have questions about it, call right away.
Billings are generally coded by the lawyer’s office and a wrong code or client number can
be assigned to a bill. Retainer Fee Agreements may provide that unless you contest your bill
within thirty (30) days, it is assumed that you agree with the charges.
Sometimes clients do not review their bills and do not realize their retainer fee is almost
used up. They are surprised and unprepared when the attorney asks for additional funds. Most
Family Law attorneys do not maintain accounts receivable so if you cannot pay your bill timely,
you may find yourself without a lawyer in the middle of your case. Be sure to keep track of
where you stand with your account each month.
If you are coming to the end of your retainer fee and your case is still ongoing, discuss
finding alternatives with your lawyer. There may be community assets which could be liquidated
or sold to raise fees or the attorney may be willing to take a lien against property and wait
to be paid until the end of the case.
5. Are There Ways To Limit My Attorney Fees?
Thousands of dollars in attorney fees can be saved with just a little knowledge on your part.
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Questions: Write down all of your questions and bring a notepad with you
to the attorney’s office to write down the answers. It is almost impossible to remember
everything you wanted to ask without a written list. Attorneys welcome questions. When
you have questions during your case, write them down and try to call only once in a while
for answers. Many clients call every time they have a question, which is sometimes daily,
and they are shocked when they receive the bill at the end of the month. Remember, attorney’s
fees are based upon time spent, so use their time efficiently.
-
Documents: When your attorney asks you for documents, gather all of them
and deliver them to the office as soon as possible. The client who gathers requested
documents quickly and completely will get his or her case completed faster. You can
avoid the expense of follow-up letters and telephone calls from your attorney’s office
reminding you to bring in what you forgot if you are complete the first time around.
Bring copies, not originals. It is generally much cheaper for you to make copies at a
copy store than to pay your attorney to do this. Also, it avoids the possi¬bility of
losing the originals. Keep the originals handy so if you end up in court, you will have
them available.
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Discovery: Your case may involve “discovery.” Discovery can consist of
Interrogatories (questions you must answer under oath) and/or a Request for Production of
Documents, listing what documents you must produce for the other side. Although it is
time-consuming to answer questions and gather all of the documents requested, do it promptly
and completely; otherwise you will incur substantial fees asking for continuances or fighting
over what you should or should not produce. In most situations, it is much less expensive to
disclose and provide the documents requested rather than try to play hide and seek. That is a
losing game and is very expensive. Stringent disclosure laws have major financial penalties in
place for anyone who tries to hide information.
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Staff: Use your attorney’s staff whenever possible. Staff rates are far less
expensive than the attorney rate.
-
Offers: Tell your attorney to make offers to settle at every stage in your case.
Even if the first one is not accepted, generally it will start dialogue to begin the settling of
some, if not all issues. Clients are always more satisfied when they have taken part in a
settlement rather than have a judge make the decision for them, and the cost savings are
substantial.
-
Move It Along: A frustrating situation is when your attorney cannot get
responses from the opposing counsel and you keep paying for them to follow up. The only
thing you can do in these situations is to tell your attorney to push the case to court.
Sometimes that is the only way to get the opposing side’s attention.
6. What Documents Do I Need For My Attorney?
Under California law, you must file Declarations of Disclosure listing all of your assets and debts.
In order to ensure that the Declarations are as complete as possible, the following documents will
assist you and your attorney with the preparation of the Disclosure. Serious penalties may result
from failing to disclose or completely disclose your assets. The more complete your statement, the
better your protection. Your attorney may modify this list based upon the facts of your particular
case.
| Asset |
Document |
| Real Property |
Deed & Real Property Tax Statement |
| Autos, Boats, & Other Vehicles |
Registration |
| Stocks, Bonds & Other Investments |
Statements from a month prior to your date of separation through the current date |
| Pension Retirement Benefits |
Pension or Employee Handbook and Statement reflecting your pension value from a
month prior to your date of separation through the current date |
| Bank Accounts |
Statements and cancelled checks and/or check register from a month prior to your date
of separation to the current date or the date the account was closed |
| Insurance |
Front pages outlining life insurance and health insurance coverage |
| Secured Debt |
Mortgage or debt statement as of your date of separation and currently |
| Unsecured Debts |
Credit card or other unsecured debt statements from a month prior to your date of
separation to the current date |
| Business |
Business or corporate tax returns for 3 to 5 years. Your attorney or forensic accountant
will give you a detailed list of what else they feel is appropriate. |
| Tax Returns |
Personal tax returns for 3 to 5 years, if income has fluctuated. |
| Wage Stubs |
Wage stubs for the last 3 months and your wage stub as of the month of your separation.
If your year-to-date earnings began before January 1st, provide the first wage stub showing
when your year-to-date earnings began. |
| Separate Property Claims |
To prove separate property claims, you will need documents showing the source of the funds from the date of receipt forward and all documents, including bank statements, checks, purchase receipts, etc., showing where the money was spent. For example:
- If you owned anything, including pension benefits before marriage, documents
at your date of marriage showing what you owned then and documents showing what,
if anything, was added during your marriage.
- If you received an inheritance during marriage or received a gift to you
alone, documents showing what you received and where the money or asset went
after you received it.
- If you used a separate property asset to purchase other assets or deposited
monies into an account, even if in joint names, provide documents showing where
the money went.
|
7. Things Your Lawyer May Forget
Occasionally a lawyer may overlook some important issues in your case. You may want to discuss
some or all of the following with your attorney:
- Safety Measures:
-
Joint Tenancy: If title to your house or other real property is held
in joint tenancy, your interest in the property would automatically go to your spouse
if you die. It is a simple mat¬ter to terminate the joint tenancy; however, many
lawyers forget to ask their client if this is a concern.
-
Pensions: If a “joinder” of your spouse’s pen¬sion plan is not filed
in your case, the pension com¬pany could distribute community property funds to the
employee-spouse without your knowledge or consent. Joinders are easily prepared by
your lawyer and are a safety precaution.
-
Insurance Notices: Formal Notice of the pending divorce can be sent
to a life insurance or health insurance company so the terms of the policy will not
be changed without notice to you (such as changing the beneficiary).
- Assets Which Attorneys Sometimes Miss:
-
Annual Leave: Accumulated annual leave may be a community asset.
This can result in substantial dollars to be divided, which may be lost if not
addressed in your settlement.
-
Educational Benefits: If community funds were used to pay for the
education of one spouse, the community estate may be entitled to reimbursement
depending upon how long before separation the spouse received his or her education
and other circumstances surrounding the benefits. This includes payments on student
loans incurred both before and during the marriage.
-
Support Paid For Another Family: If community funds were used to
pay child or spousal support from a spouse’s former relationship, the community
estate may be entitled to reimbursement if that spouse had separate property income
during the marriage, which could have made the payments.
-
Earnings At Separation If you or your spouse received wages or
income earned prior to your separation but paid after, this is a community asset.
Included in this category could be bonuses, commissions, work in progress, etc.
-
Tax At Refunds If you are entitled to a tax refund from a joint
return which had not been received prior to your date of separation, this is still
a community property asset and should be included in the division.
- Other Important Issues:
-
Separate Property Claims: Be sure your lawyer knows about any assets
you owned before your marriage, received as a gift or inheritance during your marriage
or acquired after your separation, even if those assets have been combined with community
funds or title taken in both names.
-
Personal Injury Proceeds: Money received as a result of a personal
injury is one of the few exceptions to the equal division rule. It is important to
tell your lawyer about any such awards during your marriage. Even if the money was
used to purchase an asset in your joint names, it may be traced and the asset awarded
to the injured party.
-
Physical Abuse: If you have suffered physical abuse during your
marriage, do not be afraid or embarrassed to tell your lawyer. This may impact
custody or support and/or may be a basis for a personal injury claim.
8. Wrapping Up
After your divorce is over, you still have some very important steps remaining, which you
or your counsel should complete. Be sure to ask your attorney if he or she will take care
of the wrap-up work or whether that is your responsibility. Some actions to take are:
-
Change the “beneficiary” of any life insurance policies, stock accounts, mortgage or car
loans, or any other assets which have a benefi¬ciary named in the event of your death,
unless your court order directs other¬wise.
-
Take your spouse’s name off of all accounts, i.e., bank accounts, credit union accounts,
credit cards, stock accounts, etc.
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Notify DMV of any automobile transfers and divide out auto insurance policies.
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If you have divided your spouse’s pension and/or re¬tirement benefits in kind, be certain
Qualified Do¬mestic Relations Orders have been prepared and approved by all parties and the
pension fund and filed with the Court.
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Obtain Inter-spousal Transfer Deeds for any real property awarded to you.
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Close all joint credit card and department store accounts.
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If your Judgment contains child support and/or spousal support provisions, have it certified
and re¬corded in any counties in which your spouse owns real property. It then automatically
becomes a lien against the property.
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If support is payable by wage assignment, be sure the wage assignment has been prepared and
served on your spouse’s employer.