HOW NOT TO GET SCREWED BY YOUR OWN DIVORCE LAWYER
What I’m about to say will undoubtedly anger many fellow attorneys. Why? Because the truth sometimes hurts. Although this article focuses specifically on divorce cases, much of the advice I give pertains to many other areas of law and has been derived from 31 years practice as well as personal divorce experiences.
First, let me start by giving you my personal opinion about “family” lawyers. Most are scum-of-the earth, bloodsuckers who thrive on the process of breaking-up families. I believe that eventually we will evolve as a society and eliminate these type lawyers from the legal system. Why? Because they perpetuate chaos and conflict among parties instead of resolutions. Americans would be better served with a less costly system which involves mandatory counseling coupled with predictable methods of deciding custody and property division. Perhaps binding arbitration panels where the process utilizes court appointed specialists including counselors, economists, psychologists, psychiatrists and pediatricians? Any system would serve Americans better than what is currently taking place.
Hire the right lawyer. Lawyers advertise “family law” services, but there is no real system set up to assure their competence or integrity. For instance, in a typical divorce, there is a right to a trial by jury on the issues of custody and property characterization. Thus, whomever you hire should be a seasoned “trial” lawyer, capable and comfortable in front of a jury. Most “family” lawyers will admit they almost never take their cases to a jury, and almost always defer to a judge’s decision. So, what happens if your inexperienced “family” lawyer has to go to trial because you want to exercise your right to do so? You are stuck in what might be the most critical legal affair of your life. You may be stuck with a “My Cousin Vinny” type lawyer, and you lose. You must know who you are hiring. Ask the lawyer how may jury trials he/she has taken to jury verdict? When was his/her last jury trial? What was the result? If the lawyer hesitates answering any of these questions, RUN!
Do not hire a “family” lawyer on an hourly fee contract. Most family lawyers charge an hourly rate as opposed to a set charge. I believe this hourly fee system gives the attorney an incentive to overcharge and ultimately scare clients away from simple status communications with their attorney. Hourly billing at $300-$400 per hour adds up quick. I know a person who was charged over $8,000.00 for emails. Imagine, every email, phone call or letter written or received, being charged at $300-$400 per hour. If you can negotiate fees to a flat charge, you win! If you can’t, attempt to set maximum charges per phase of litigation: pre-litigation; post-lawsuit discovery; mediation; post mediation and then trial. Request that the attorney put caps on fees at each level. If you don’t pay attention, eventually the lawyer will have you in a position where you have spent your entire savings and cannot afford to litigate further. The lawyers win. Your spouse wins. You get screwed! The conversation with your “family” lawyer will go something like this: Lawyer- “I know you want to take your case to a jury on the custody issue, but in order for that to happen I estimate I will need at least another $50,000.00 to prepare properly for trial. If you can’t pay me, I have no choice but to withdraw.” Can you say “SCUM-SUCKER?” This scenario plays out across America every day. The client is drained of all funds and assets, and the lawyer pressures the client into and inequitable settlement or simply refuses to get the job done. If a lawyer insists on an hourly fee, be sure to ask about hourly charges for secretaries, paralegals, and other staff. Also, and more importantly, ask the lawyer what ancillary activities will be charged for, such as emails, text messages and telephone calls. When the lawyer discloses that you will be charged hourly for those activities, add it up and understand that a simple 10 minute phone call or 50 word email may cost you hundreds of dollars. It’s these seemingly small tasks where the “family” lawyer financially rapes you. Finally, ask the lawyer if he/she charges for copies and faxes. If so, the range will be $0.50- $1.50 per page and the cost will eat you alive. In the end, your copy bill alone could be thousands of dollars. These charges can be negotiated or simply waived, you just need to ask.
Do not give your prospective lawyer collateral. “Family” lawyers are notorious for asking their clients to essentially steal from the “community estate” and turn the property over to them to their secure fees. If your lawyer asks you to do this, RUN! Their favorite collateral requests are: vehicles; wedding rings; real estate; antiques; certificates of deposit; boats; and RV’s. Most family lawyers who request collateral will stop at nothing until you are penniless and without assets. It’s just their nature.
Don’t give away any separate property. If you have “separate property” acquired prior to the marriage, there is very little that your spouse, a judge or jury can do to get any part of that property re-characterized as “community property.” Therefore, DO NOT allow your “family” lawyer to convince you that you should simply concede this property or any portion of it to your spouse to get the divorce over. You should fight hard to retain 100% of that property unless your lawyer shows you the law giving legal grounds to characterize or apportion the property differently. Don’t be fooled by arguments that the judge can do as he wants and “your fault” could cause him/her to force you to give it all away. That is 100% BULLSHIT and incorrect legal advice. Unfortunately, “family” lawyers use this hard-ball tactic to force inequitable settlements down their client’s throats and avoid trial. That being said, there are exceptions to this rule which may allow your spouse a claim for reimbursement expenditures made from the community estate. For instance, if you paid community funds for some separate property debts like taxes, refinance, capital improvements or large repairs, your spouse could claim reimbursement but only for up to 50%. Remember, the community estate is half yours. Businesses owned prior to the marriage are separate property. However, unless the business is a legal or medical practice, chances are your spouse will be entitled to 50% of the future earnings of the business if she can prove that the current business value was derived primarily during the marriage. Many times, an economist or valuation expert will be needed to estimate the present value of an ongoing business.
Do not allow your “family” lawyer to indefinitely delay your temporary hearing. The quicker you have your hearing, the quicker you get to trial. Likewise, you should force your “family” lawyer to request a formal Discovery Control Plan as soon as your lawsuit is filed. Delaying this process will delay the final resolution of your case and end up costing you more money. There is no good reason for delays. NONE!
Do not suggest or agree to limiting communications with your spouse. “Family” lawyers have found a new trick to avoid reconciliations which abruptly end their fees fest. It’s called “Family Wizard,” and most courts are playing the game requiring that divorcing couples in “high conflict” cases utilize the service. Basically, it requires that all communications take place electronically so attorneys and the Judge can monitor. This system all but assures that married couples will not have the chance to reconcile. And, this system burdens parties with unnecessary attorney fees since ALL communications must be monitored. Email your spouse to coordinate soccer practice, CHA CHING! Email your spouse to set up a call with the kids, CHA CHING! It’s total bullshit and when your “family” lawyer suggests it, tell him/her you’re not agreeing to it and do not want him/her suggesting such restrictions to the Court. In fact, you should require that your “family” lawyer object to the Court ordering the implementation of any such communication system. During my last marriage, we split-up and got back together no less than six times. We had two children together and wanted to fight to make it last, even if it meant time apart. Family Wizard and “family” lawyers pretty much killed that from happening again, for better or for worse. Don’t fall for this fee generating trickery.
Do not make exaggerated claims of alcohol abuse by your spouse. “Family” lawyers have always resorted to dastardly tactics like falsely alleging sexual abuse or domestic violence, and still do. Lately they have added the new gimmick of alleging “alcohol abuse” and routinely petition the Court to mandate 24/7 monitoring with a system called Sober Link. This program requires the participant to give a breath sample every 4 hours. The results, sometimes accurate and sometimes not, are emailed to all attorneys, all participants and the Judge. This new gimmick allows your attorney to charge fees every time a breath sample is emailed by either party, CHA CHING! Get it? Another oppressive financial tactic to soften you into submission. So, if your “family” lawyer suggests making false or overblown allegations against your spouse related to alcohol abuse, you too might be forced to submit to the program and your lawyer is assured more fees for doing absolutely nothing. Unless there is a real issue with alcohol and your spouse, do not allow your “family” lawyer to request Sober Link services from the Court, as it will end up costing you in the end and you too might be forced to participate at a service cost of around $300 per month.
Force your lawyer to mediation quickly. 99% of civil cases can be settled at mediation, including divorce cases. When you hire your “family” lawyer, require a commitment that he/she will press for early mediation. A greedy “family” lawyer will resist resolving your case until the last possible moment. Why? If your case settles quickly, there is no more CHA CHING! Your lawyer may try to convince you that mediation only happens near the end of litigation. Bullshit! If your prospective lawyer gives you that line, RUN. I settle complex multi-million dollar civil cases every year without ever filing a lawsuit, let alone forcing my client through protracted unnecessary litigation. Any competent litigation attorney will agree, if you know what you are doing, any case can be settled early and without unnecessary litigation costs. So, get a firm commitment from your “family” lawyer that he will strongly urge mediation at the very start of your divorce. The fee savings for you and your spouse (your family) could be substantial. Do NOT take any excuse for an answer. Even the most complex financial valuations of marital estates can be conducted by an expert (if necessary) within weeks. Mediation is especially effective in divorces where property division is the only issue. If you and your spouse are still communicating, talk about possibly hiring a “collaborative” family attorney who will agree to dual representation and early mediation. This relatively new concept works well in divorces where couples are not disputing custody and property division is the only issue. Ask your “family” lawyer if he/she has experience in “collaborative” family law cases. If not, ask for a referral. Remember, it’s your case! Your life! Your future! Do NOT let some greedy lawyer gobble up your family’s assets fighting issues which he/she creates and perpetuates. Your objective should always be getting the divorce over quickly without being screwed by the lawyers.
Don’t let your “family” lawyer drag-out the final settlement hearing. Many times, after a case settles at mediation and the client believes the financial bleeding has finally stopped, crooked “family” lawyers drag out the final resolution for months. I know a person who was charged an additional $10,000.00 for nothing less than lawyer fiddle fucking around after the case settled at mediation. This is how the scam works. You settle at mediation with a signed Mediation Settlement Agreement. Then, your lawyer drafts a completely incomprehensible and convoluted Final Decree of Divorce that isn’t even close to the terms of the MSA. He sends this to your spouse’s crooked lawyer and, of course, your spouse’s crooked lawyer sends an equally incomprehensible and convoluted version of their Final Decree of Divorce to your lawyer. Each version arrives and the crooks then email and call each other 20-30 times haggling over terms of each draft of the Final Decree. Two, three, maybe four months pass as each crook comes up with excuses for not setting the case for final hearing. The ostensible excuse will be that they are still working out the very complex terms of the MSA. Bullshit! If drafted properly, the MSA has all of the terms. 99.999% of the Final Decree of Divorce is boilerplate language required by statute. Each crooked lawyer then sends their client a final outrageous bill for post mediation work and refuse to finalize your divorce until paid or a Promisory Note is executed. Thieves! Plain and simple, thieves. There is only one way to avoid this final “end game fraud.” Don’t agree to an hourly rate to begin with! Or, force your lawyer to agree to a post-mediation cap on fees.
To summarize, if you follow these tips, you have at least a fighting chance of not getting screwed by your own divorce lawyer:
1. hire the right lawyer;
2. negotiate the attorney fee to a flat charge;
3. do not give collateral;
4. do not give away separate property;
5. get the temporary hearing and Discovery Control Plan ordered by the Court early;
6. do not suggest or argue to limit communications with your spouse;
7. do not suggest or argue for alcohol monitoring;
8. get your attorney to set your mediation quickly and do not accept any excuse for delay; and
9. do not allow your lawyer to delay the post-mediation final hearing.
Although I do not accept anything other than “high asset” divorce cases, I do accept legal malpractice cases against negligent or fraudulent “family” lawyers. In fact, I get an extreme amount of personal satisfaction suing these blood-sucking scum. So, if you think you have been the victim of legal malpractice at the hands of a crooked “family” lawyer, please call me for your free consultation at 806-374-4024.
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