Hiring a divorce attorney

What questions should you ask when hiring a divorce attorney?

Hiring a divorce attorney is rarely a happy event. You may well have a sense of relief at finally moving on from a difficult situation, but the end of a marriage is not usually happy. So hiring a divorce lawyer is sometimes seen as a grudge purchase. Divorces cost money, and it’s understandable that you want to keep your costs to a minimum. But it’s also important to find a lawyer who a) you can work with and b) will deliver the best possible outcome. This is a major decision in your life, and you probably have no experience of divorce. (Despite celebrities who have been married three or four times, the majority of people don’t experience more than one or two marriages in their life.) It’s perfectly reasonable – indeed advisable – to interview several prospective divorce attorneys before making your selection. Their effectiveness will have a major impact on the rest of your life. What questions should you ask when hiring a divorce attorney?

The complexity of your case

The questions you ask, and the relative weight you attach to the answers, will depend on the complexity of your case. If you are young, have no children, and were married out of community of property, your divorce is likely to be straightforward. You don’t need to pay for extensive expertise in negotiating tricky settlements. If you are married in community of property and have a range of assets, particularly if there are retirement planning vehicles in place, your situation is more complicated. If you have children, you need expertise in custody and family law issues.

How experienced is the attorney?

How much experience do you need? Only you know how your soon-to-be-ex is likely to behave. Are they combative or compromising? What is your matrimonial regime? How old are your children, if you have them, and have you had any discussions about child custody and care since deciding to divorce? There is no ideal level of experience, it depends on your needs. But it’s an important element of your decision. Questions might include:

How many divorce cases have you handled?
What proportion of your divorce cases are contested vs. uncontested?
What is your experience of mediated divorce?
What is your experience of child care and contact (custody and access)?

Who’s on the case?

In many fields, pitches are made by senior staff but the work is done by juniors. The law is no different. There is nothing wrong with this, but you are entitled to know who will be working on your case.

Who will be the lead attorney on my case, if not you?
Can I meet them?
Do you use paralegals or assistants to handle administrative and/or non-technical aspects of the case?
Do hourly fees vary according to who is doing the work?

The use of associates, candidate attorneys, or paralegals is not a bad thing. Law firms, like any business, delegate routine work to staff and keep senior partners free to work on more complex cases. As long as experienced attorneys maintain oversight of the case and represent you when it matters, e.g., in court, that’s good business practice. But if you are being charged by the hour, the hourly rate for each team member should reflect their experience.

How do you charge?

This should not be the sole basis for your decision but it is an important component. Although hourly billing is the norm in the legal profession, it is fast being replaced by other, more transparent structures, such as flat fees. You may be borrowing money to fund your divorce, so knowing your potential fee liability at the outset is essential, even if it is estimated. Ask:

How will I be charged?
What is your hourly rate?
What are the hourly rates for others who will work on the case?
Do you have a flat fee option?
If outside experts are involved, e.g., social workers, how are their costs accounted for?
What do I have to pay upfront?
Do you bill monthly, at other intervals, or at the end of the case?
What do you estimate the total cost will be, based on the information I have given you?

Except in the case of an uncontested divorce, it may be difficult for a lawyer to give you an accurate estimate, and they may shy away from this question. This should not be a black mark against them, as the final cost will depend on factors that simply can’t be known at this stage, such as the level of conflict that may arise. However, you should ask the question all the same, as it will allow you to assess the integrity of the attorney. If they respond that it is difficult to estimate all the costs that may be involved, this is an honest answer. If they flippantly quote you a figure that seems optimistically low, or is much lower than other lawyers have quoted, it may be a ploy to win the business.

How do I contact you?

Most lawyers work long hours. But that doesn’t mean you should ring them up at 10.00 pm on a Saturday. Your crisis may not keep office hours, but your lawyer does. However, you are entitled to know how you can reach them in an emergency and how long it will take to get answers to questions. You might ask:

How long do you take to return phone calls?
How do I get a hold of you if there is an emergency?
What do you consider to be an emergency?

You should also discuss what regular contact will look like, and how that will impact on your fee structure. Do you want to be informed of every detail as it develops, or do you prefer a report at agreed intervals, e.g., weekly, with a summary of progress? If you expect the lawyer to call you every time your spouse’s lawyer raises an issue, you should reasonably expect to be billed for that time, and you should also advise the lawyer of your contact expectations.

Will I be kept informed of all developments in my case?
What do you consider “a development”?
Or…How often will you give me updates?

How will it all end?

No one has a crystal ball. You’ve given your prospective divorce lawyer as much information as you can, but full discovery has not been done. Your spouse may have hidden assets that are yet to come to light. They may behave in a way you didn’t anticipate. However, while the lawyer may not yet have all the facts, they have experience. Every case is different, but most have similarities. Ask the lawyer what they think the outcome will be.

Based on what you know about my case, how do you predict a judge will rule on it?
Will I be able to recover my legal fees from my ex?
How much maintenance do you think I will be able to claim?
Will I be entitled to a portion of my spouse’s pension?
What will be the tax implications of my divorce?

If you are interviewing several lawyers, and one is a total outlier in terms of their view of the outcome, that could be a red flag. Or it could be that they have a radically different approach. You will need to weigh up the answer to this question along with all the others in making your decision.

Can you work together?

Ultimately, you need to be able to work with the lawyer you choose. They are going to be a very important person in your life for the next few months. They will need to know intimate details about your family life, so personality will play a big part in determining your compatibility. When hiring a divorce attorney, ask yourself:

Do I have confidence in them?
Do I feel comfortable confiding personal matters, and expressing my fears and doubts?
Do I trust them?
Will they put my children’s interests first?

There are divorce lawyers who make a lot of money by settling cases involving extensive assets. Their priority is winning at all costs. But if your priority is minimising the emotional trauma you experience and ensuring your children are protected, you want a lawyer with empathy and high emotional intelligence who will strive for a collaborative divorce with dignity. You don’t want a “shark” who will attack your spouse and treat the divorce like a battle to be won. After all, if you have children, you will still need to see your ex-spouse after the divorce. If you both start out embittered, it’s very difficult to forge an amicable co-parenting relationship.