Saturday, February 18, 2012

Thursday, February 16, 2012

What Makes A Good Divorce Client?

What Makes A Good Divorce Client?

Divorce is one of the most traumatic events that anyone can go through in his or her lifetime. Not only is it frightening, but it's difficult, to say the least -- even under the best of circumstances. Attorneys and clients usually have a love/hate relationship during a divorce.

Typically clients will need an attorney at the beginning of the case, but by the end of the divorce in many circumstances, the client's attitude -- sometimes justifiably -- is that the attorney didn't do enough for them -- "I'm not happy with your services, and for these reasons, I don't want to pay your bill."

Think of this scenario. A person going through a divorce is in a no win situation. First of all, you don't see your children all the time, even under the best of circumstances, where custodial arrangements range from one parent having primary physical custody and the other parent having very limited time to a 50/50 arrangement. So no matter how you look at it, you will spend less time with your children. Second, one party is paying child support, the other party is receiving child support, and when you split up and set up two separate households, too often there is not enough money to go around. Third, in many cases there is spousal support, which again cuts the marital pie. Fourth, there are the issues of property -- it is divided. You now have half of what you had, you often have more debts, and -- to say the least -- it is too frequently a lose/lose situation. Attorneys end up helping people divide debts, as they have fewer assets, smaller retirement accounts, and houses that are under water.

Finally, to add insult to injury, you have to pay your attorney. So from this attorney's perspective, what makes a good client?

1. Try to be organized. When you are meeting with your attorney, write down your questions in advance. Try to have an agenda, and make sure that your attorney answers your questions.

2. Do not call or e-mail continually because this is how your case will start spinning out of control from a cost standpoint. Most attorneys charge by the hour, and we are not only charging for phone calls, but also for e-mails, because e-mail has now become the preferred method of communication. I find that I have almost no snail-mail in my cases, and everything is done electronically. Save up your questions. If you are going to communicate by e-mail or phone, have several questions at once, rather than doing one now, one later, and having a bombardment of e-mails back and forth on a daily basis, which happens too frequently in cases that are spinning out of control.

3. Remember that an attorney is here to assist you and help you through the legal system. Do not be afraid to feel lost and bewildered, but make sure that you and your attorney are communicating. A good client will ask questions, but not too many.

4. Have reasonable expectations. Be realistic. A good attorney will help you stay reality oriented. Listen to your attorney. Listen to legal advice. Remember that you are trying to resolve issues, not have a war.

5. Try to be reasonable. Don't ask for something that you are not going get. Bear in mind that in negotiations, you should always ask for more than you expect to receive, but don't be off the wall. Have realistic expectations regarding custody and parenting time. Try to be realistic about child support and spousal support. Try to be realistic about property division.

6. Too many clients want the house no matter what. Yes, there is often an emotional attachment, but in many cases, especially if the economics make no sense, it is better to not keep the house. Sometimes it is better to sell it; sometimes it's better for the spouse who has a greater income to keep it. These are all things to consider.

7. Have a game plan and an agenda, but be prepared to be flexible. Remember that life happens, and if things didn't go wrong in your life, you wouldn't be getting a divorce in the first place.

8. Work with a therapist. This is important, because often there are anger issues or feelings of loss, or resentment. Your attorney is not your therapist.

9. Try to have your attorney explain the legal system to you so you know what to expect.

10. It is important to assist your attorney as far as providing documents and information, because the more helpful you can be, the more cost effective your attorney can be, and the lower your attorney fees will be.

11. Don't hesitate to discuss fees, to ask about how much the representation will cost, and do not hesitate to request a monthly billing statement so you know exactly what is going on with regard to billings in your case.

12. Last, but not least, remember that divorce is a process, a transition, albeit a painful one, but it is a step that you will get through. I often tell my clients to think of a 100-yard dash. That is not a divorce. A divorce is more like a marathon, and if you start understanding that, you will get through it. You will also be a better client, and you will understand that there is light at the end of the tunnel.

What are your thoughts? Please share them with us.

Family Law Attorney & Legal Correspondent
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222

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Sunday, February 12, 2012

What is mediation, and who can it help?

My husband and I are going through a divorce. A friend suggested we go to mediation? What is it exactly? How does it work?

Mediation is a way to resolve conflict where people who disagree meet with an impartial third party to help them create a mutually acceptable agreement.

Mediation is:

Confidential — You won’t be reading about the results of your agreement in the paper.

Voluntary — You can leave at any time for any reason or no reason at all. Even if mediation is court ordered, if you make a good faith effort to come to agreement, you will fulfill that obligation.

Neutral — A mediator’s job is to create a safe and productive environment, not to decide who is right or wrong.

You have control over the outcome — You do not have to agree to anything that isn’t right for you.

There are two types of mediation practiced in the Helena area, evaluative and facilitative.

An evaluative mediator focuses on the legal rights of the parties and helps them reach agreement according to the legal definition of fairness. The mediator is likely to evaluate how a judge might rule. The meetings are most often held in separate rooms, with the mediator shuttling back and forth. Because of the legal knowledge required to evaluate a case and lawyers’ tradition of meeting separately, most evaluative mediators are attorneys.

A facilitative mediator uncovers the needs behind a stated position and helps the parties find a solution that meets those needs. He or she will help the parties communicate clearly, keep everyone focused, respectful and moving towards a resolution. A facilitative mediator does not make recommendations, offer advice or analyze the parties’ chances in court. Facilitative mediators most often meet with everyone in the same room, with an occasional private meeting with each side. They come from all backgrounds, including the legal profession.

Even if your mediator is an attorney, he or she won’t be offering legal advice, so both styles of mediation encourage the parties to have an attorney review any agreement before signing.

It is important to consider which style of mediation best fits your situation:

• Do you want a process that also works on improving communication in a continuing relationship? Is a “just-the-facts” negotiation style more to your liking?

• Do you want your legal position evaluated by your mediator in the mediation or later by your attorney?

• Do you prefer to meet around the same table or in separate rooms?

• Do you want more or less direction from your mediator?

Who should not mediate?

Because mediation depends on the honest disclosure of financial assets, if there is a concern that someone might be hiding money or property, that issue should be taken to court.

Traditionally mediation has not been used in cases of domestic violence, and attorneys say that Montana law allows domestic violence survivors to opt out of even court-ordered mediation. Some survivors want to have more of a say in the outcome of their divorce. If this is your situation, and you want to mediate, it is important that your mediator understands the dynamics of domestic violence and designs the session to be emotionally and physically safe. Some survivors can comfortably advocate for themselves in the same room. Others need to meet separately, arrive at different times, be behind a locked door or mediate by phone.

You don’t have to go it alone. If it is acceptable to all parties, you may bring in a friend, family member or an attorney to help you negotiate, be an advocate or to help think of new ideas.

Whatever your preferences, there is a mediator who suits your needs and will help you reach an agreement that works for you, taking less time and costing less than a court battle.

Mary G. Commander is a Virginia Supreme Court certified Mediator.

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