Litigation Attorneys

Most people faced with a divorce hire a family law litigation attorney. One reason is that divorce is a very emotional process for the participants, and they are usually angry, distrustful of the other party, and intimidated or afraid of the process. They don't believe the other side will be reasonable, and feel they need to be aggressive to get what they want.


But a litigation attorney's first objective should be to attempt to reach an agreement with the other party on some or all of the issues. If the parties are able to agree on division of assets and debts, but not custody and visitation of children, then the parties should stipulate to the property division and focus on resolving the custody dispute. It does not help to withhold agreement on property issues and hold it hostage to getting what you want with custody and visitation. Some attorneys do this better than others. 

It takes most family law attorneys several or many years to fully understand the dynamic of divorcing couples, and the emotions that motivate their actions. Often the client is his own worst enemy. If children are involved, those parties will continue to be involved with one another until after the the youngest turns 18, often longer. Given that they will need to continue dealing with one another for years to come, the worst that can happen in a divorce is to make one side or the other so angry they are forever motivated by a desire to get even with the wrong the feel they have suffered.

So an experienced family law attorney realizes his or her client is best served by negotiation and compromise so both parties feel like they have given a little and gained a little. With compromise, the parties maintain control over their lives and those of their children, even though they may not have realized exactly what they wanted. That is almost always better than gambling with formal contested proceedings where at least one side is going to walk away feeling like they "lost" and dedicate themselves to coming back to get even. This is where conflicts escalate and people get locked into the revolving court doors.

Conversely, a litigator also realizes that at times one party or the other simply is too angry or hurt to be reasonable, and compromise and agreement is not possible. For those clients the litigator must protect his client through the court's process. Discovery proceedings can be utilized where one party is unwilling to recognize their obligation to disclose all material facts and information regarding their finances, mediation procedures and trial can be used to implement custody and visitation plans, and motions requesting temporary orders can be used to reduce conflict pending settlement or trial. 

When one side is unwilling or unable to be reasonable, the litigator must protect their client by navigating them through the court process. Sometimes this is the only way to get parties divorced, divide the marital estate, and institute a parenting plan with provisions for future support of the children. But it's a process that usually works.

What kind of attorney do I need?

You've decided you need an attorney to assist with your divorce, but did you know there are different types of Family Law attorneys? You may hire a litigator to represent you against the opposing party, an Attorney/Mediator who does not represent you or the other side but rather is neutral and assists you and your spouse in resolving the issues, or a Collaborative Attorney who represents you while a separate Collaborative Attorney represents your spouse.

Most Family Law attorneys are litigators, which means that while they may attempt to reach an agreement with the opposing party, if they are unsuccessful they obtain orders by filing a motion and going to court. While it is far better for the parties and children involved for the parties to resolve disputed issues by agreement, the reality is that most people going through a divorce are unable to do so. Emotions get in the way of rationale decisions. I am a litigator. My first and greatest effort is to resolve the issues through the opposing party or their attorney without the necessity of formal court proceedings where a judge ultimately decides what he or she thinks is best. But if the other side is unable to be reasonable, or anger has reached a point compromise is not possible, it's time to obtain orders from the court.


When divorcing couples are able to communicate rationally and without anger or judgment, they may be better served by an Attorney/Mediator. A Mediator (not to be confused with a child custody mediator, who is typically not an attorney but a therapist) can assist these couples by helping them work through the issues, making mutual decisions for a parenting plan for their children, support, division of assets and debts, and preparing the legal paperwork to finalize the divorce. The drawback to mediation is that if the parties are unable to reach an agreement, the process falls apart and each party is faced with then hiring their own attorney to represent them in contested proceedings because the Mediator can no longer represent either party.


A newer process has evolved that is designed to help people too conflicted for mediation but who desire to maintain control of the outcome of their dissolution. With Collaborative Law, each party is represented by a Collaborative Attorney, but they sign an agreement not to resolve disputes by going to court. This keeps the parties focused on resolving the issues by agreement, even when the going gets tough. In order to do this, each side may employ 'divorce coaches' to assist with the emotional aspects of a contested divorce, and child custody mediators to help the parties formulate a parenting plan for their children. The objective is to keep the disagreements out of court in order to maintain control of the outcome.


Mediators and Collaborative Attorneys both advocate one benefit of their process being reduced legal fees. I know I'll hear from my colleagues on this, but sometimes legal fees are less, and sometimes they are much more. Some couples spend several thousand dollars on mediation only to reach an impasse one one or more issues, and they then abandon the mediation process and each hire their own litigators.


With Collaborative Law, each side is paying an attorney, sometimes a 'divorce coach', a private child custody mediator, and at times a financial consultant. Even if the process is successful, it can cost more than contested litigation. Alternatively, if the process is successful the parties have learned a great deal about resolving their differences through a cooperative approach and are less likely to return to court over the years to resolve ongoing custody and support issues.


Which type of attorney you hire to assist you is a decision only you can make. As smart as we like to think we are, attorneys are not able to predict how your spouse will react or the outcome of your case. That's why we charge by the hour instead of quoting clients a flat rate for their divorce - we don't know your spouse and therefor don't know what we are getting into.

If I believe a client will be better served by mediation or a collaborative approach, I will refer them to someone competent to help them. I almost always discuss the options with new clients. I also make every effort to resolve differences between parties by agreement. Litigators, Attorney Mediators, and Collaborative Attorneys all agree parties to a divorce are better served by compromise and agreement in resolving their differences rather than maintaining an aggressive position in court.


Please feel free to link this blog and follow the coming articles. I will have a guest Attorney Mediator and Collaborative Attorney provide their perspectives on mediation and collaborative law to help you make the right decision for you.

How to find the right lawyer for you

Hiring an attorney for your divorce is usually a major financial expense. The attorney who represents you can and will have a direct impact on how much your divorce will cost. Not by virtue of how much he or she charges by the hour, but by how many hours they take to get the job done.

The attorney you choose can also make your divorce a miserable process, or they can make a miserable process tolerable. In other words, it is important that you hire an attorney who is competent, mindful of not unnecessarily increasing legal fees, and that you relate to well on a personal level.

So it surprises me how many people hire the first attorney they meet with, simply (I imagine) because they do not like the process of interviewing lawyers, the issues are intimidating, and they just want to get it over with. You are hiring someone who will be charging you lot of money to do an important job. It's like a job interview to hire a key employee, and you should treat it like one.

Browsing through the phone book or responding to slick ads is the worst method for finding a lawyer. You just don't know what you are going to get. I believe the best method is to get referrals from someone you know (or a friend of a friend) who has worked with a particular attorney. Another reliable method is to ask another lawyer you know and trust to refer you to a good family law attorney.

If you are facing a divorce and need to hire someone to represent you, here is what you should know:

1. Make sure the attorney devotes the majority of his practice to Family Law. Some attorneys do well practicing in several different areas of law. Most do not. You want experience, not someone who has done a little of everything.
2. Don't hire an attorney that will not talk frankly with you about fees. If the attorney changes the subject, tells you not to worry, or gives vague answers, run out the door. The attorney should explain to you in detail about his or her fees, how he or she bills, and what and how much you are charged. The attorney should put your retainer in a trust account, and send you a detailed statement at least monthly.
3. If the attorney guarantees you results or promises a specific outcome, run faster.
4. Make certain the attorney you interview with is the one who will be handling your case. You don't want to bond with an attorney with whom you have confidence, only to be pawned off on the new attorney just out of law school. 
5. Make sure you are comfortable with the attorney on a personal level. Does he or she seem concerned with your issues? Do they take the time to explain the legal proceedings, your options, and the law? Many attorney-client relationships disintegrate simply because of personality conflicts. This is someone you will be working closely with. Make sure you can get along with them.
6. Be prepared. For your first appointment you should have a copy of last year's tax return if possible, details of your real estate holdings, mortgages, bank accounts, retirement benefits, debts, and other substantial assets. Remember, when dealing with an attorney you are paying by the hour. If you are not prepared, you only have your self to blame.  

 Again, if you need a divorce attorney, talk to your friends and family first. See if anyone you know can recommend someone based on their personal experience. Next, call an attorney you know in the community and see if he or she can refer you to someone. Finally, if a referral is not possible do some work and find at least 3 attorneys to meet with and evaluate. It may not be pleasant, but don't hire the first attorney you meet. Remember to ask about how long they have been practicing, what percentage of their practice is devoted to Family Law, how much they charge and what their billing practices are, and gauge their personalities to determine if they are someone you can work with for several months or longer. But don't just hire an attorney who seems sympathetic and tells you what you want to hear - you need someone who will tell you what you need to hear so you will be prepared to withstand the process.