Dear Client,
Legendary investor Warren Buffet once famously said, “The most important decision you will ever make has nothing to do with your money or your career- it is who you marry.”
Those of us practicing family law will quickly tell you that the second most important decision you will ever make is who you hire as your divorce attorney.
With half of first-time marriages ending in divorce (second and third marriages fail at a much higher rate), most Americans face the reality of having to choose an attorney who will help guide them through this difficult time.
Unfortunately, sometimes our profession does more harm than good.
At a deposition in early April 2024, attorney Joseph Houston, representing the husband in a contentious divorce case, stood up and shot his client’s wife, Ashley Prince, and her new husband, Dennis Prince, before turning the gun on himself. The incident sent shock waves throughout the Las Vegas community, where the shooting occurred. However, for divorce attorneys throughout the nation, it was anything short of shocking. Why, might you ask? Divorce attorneys have now become more mired in their client’s battles than ever before. Family Court has turned into a tool for abusers where parties are encouraged, often by their lawyers, to terrorize one another, and Judges do not have the fortitude to tell them no. Contentious cases can drag on for years, spurred by attorney-driven litigation, and can cost parties upwards of hundreds of thousands of dollars.
Often fueled by the pressure of their clients’ “win at all costs” approach, attorneys feel they must play the role of the attack dog. This often means engaging in scorched earth tactics that cause divorce cases to spiral out of control, at the expense of the parties and often, their children. During court hearings, attorneys typically raise their voices and speak over one another- and often the Judge. Sometimes it feels as though he who screams the loudest, gets the most. However, the principal effect of rude remarks, coarse language, bravado, and inflexibility is to appear unprofessional.
This is not what our profession was meant to accomplish. Not every divorce case needs to be a highly contentious battle that spans years and costs the parties hundreds of thousands of dollars. Lawyers are meant to expedite proceedings and ensure the process is smooth. These days, however, it seems that lawyers increasingly engage in mean, unnecessary, and calculated behavior to inflame.
While medicine has the Hippocratic Oath, nothing similar exists in the practice of family law. As a client, you have many choices when it comes to choosing a reputable divorce attorney. Who you choose can play a pivotal part in how smoothly- and expeditiously- your divorce case is resolved. While most clients seek to hire the most aggressive attorney they can find, they often fail to recognize that “aggressive” does not necessarily mean “smart”. Although you want to hire an attorney who can assist you in gaining a strategic advantage in your case while protecting your interests, you do not want to hire someone who will unnecessarily inflame an already tense situation, making resolution impossible.
So, what can you do to ensure that you find the right attorney to represent you in your divorce case? And what can you do to ensure that your attorney does not engage in behavior that results in unnecessary drama, and costs?
Well for one, seek an attorney who engages in collaborative law, or collaborative divorce as we call it in family law. Collaborative law is when lawyers work together to resolve. The goal is to help the parties reach a fair settlement in the least contentious, often least expensive, way possible.
While mediation is always an option, many clients fail to realize that a mediator does not serve as an advocate for either side. Mediators are neutral third parties who are there to help the parties come to a resolution; they are not there to assist you in protecting your rights or providing you with legal advice. Additionally, mediation is not a “one size fits all” solution. As a certified mediator, with a degree in alternative dispute resolution, I can tell you that mediation works for a select few. If your relationship with your soon-to-be ex is contentious, and you want to ensure that you- and your assets- are protected, I recommend seeking an attorney who engages in collaborative law rather than turning to mediation. Collaborative law allows you to have a lawyer who can guide and protect you, but who will also work with the other side to ensure that the matter is resolved quickly and fairly. Counsel that cannot be courteous and work together respectfully are less likely to have productive conversations, or even speak at all. As an attorney who frequently engages in collaborative law, I appreciate and respect counsel who are willing to work together to reach a compromise. Conversely, I disengage with adversaries who are rude, preventing them from whatever goal they were hoping to accomplish. If your lawyer is unwilling to engage in productive conversations with the other side, a settlement is unlikely, and expensive litigation is likely to ensue.
Second, educate yourself on the divorce process so that you may make informed decisions when it comes to engaging in certain litigation tactics. As an example, you need to understand the need- and the expense- associated with conducting discovery so that you can avoid expensive and unnecessary costs. For instance, sometimes parties- at the urging of their counsel- are encouraged to subpoena records from every bank account ever owned or operated by their spouse, or they are encouraged to conduct lengthy and expensive depositions of third-party witnesses. Not to say that discovery is not an important, and often critical, part of any divorce case, however, make a habit of asking your attorney the relevance and necessity of the discovery they are engaging in. Do not engage in a fishing expedition for the sole purpose of harassing the other party. Don’t get me wrong, discovery is important, but it is also strategic. Discovery is conducted to obtain information that is crucial to your case. However, dragging every neighbor and family member into a deposition, or subpoenaing hundreds of thousands of pages of bank account statements, can sometimes be nothing more than an exercise in futility. This type of behavior will not only raise tensions, but it will also raise your legal fees.
Third, make sure your attorney does not engage in hurtful stonewalling tactics. By stonewalling and refusing to provide necessary information when requested, you are simply delaying the inevitable and raising your legal fees. There are lawyers out there who will advise you to delay or be difficult, even when it comes to providing basic financial information to the court or your opponent. While your lawyer undoubtedly must be strategic in deciding when and how to provide this information, unnecessarily making the other side “jump through hoops” is not recommended. In fact, in California, you are required to exchange certain financial information with your spouse via financial disclosures. Engaging in stonewalling tactics will, at a minimum, result in nothing more than prolonging the inevitable. It may also result in you paying monetary sanctions for your failure to comply. If your lawyer is recommending that you engage in this behavior, ask them the relevance and necessity of this conduct and where it will leave you in the end.
Fourth, be cognizant if your attorney encourages you to file frivolous ex-parte motions with the Court. In the world of law, an “ex-parte” motion refers to an emergency motion brought before the Court where one party seeks immediate court intervention. Unfortunately, what was designed to be restricted to “true emergencies” has now resulted in parties filing ex-parte motion after ex-parte motion for trivial matters that can be resolved without judicial intervention.
Encourage your attorney to make efforts to resolve your issues with your opponent before running into court on an ex-parte basis. Your attorney should be explaining to you what constitutes an “emergency” in family law…and what does not. Often what you feel is an emergency is not considered to be one by the Court. By filing frivolous ex-parte motions, you not only risk angering your judge (which is never a good thing) but also spending a ludicrous amount of money paying your attorney- and paying your spouse’s attorney if your ex-parte motion is ultimately denied.
Likewise, your attorney should be honest with you regarding the failure- or success- of any proposed motions you bring before the court. You do not have to fight every battle. And you do not need to roll the dice regarding every motion. Being strategic is not the same as being unnecessarily aggressive. There is an old saying that if the law is on your side, you argue the law; if the facts are on your side, you argue the facts; but if neither is on your side, you pound the table. Pounding the table is a sign that the lawyer has neither the facts nor the law on her side. If this is your lawyer, then you need a new one.
Five, and probably the most critical, choose a family law attorney who is cognizant of the effect your divorce has on your children and who will do their best to ensure the process is the least damaging to your kids. For children, divorce should be an adjustment, not a crisis. There is no shortage of studies that warn us that children of divorce suffer from an increase in health problems, poor performance in academics, a loss of interest in social activity, increased anger, irritability, and feelings of guilt, as well as destructive behavior. What we fail to recognize is that it is not necessarily the divorce itself that leads to this causal effect- But how the parties behave towards one another during the divorce process and thereafter.
Divorce is already hard on your kids, don’t make it harder for them by embroiling them in your daily fighting.
Your attorney should be honest with you when it comes to helping you devise a custody and visitation order that is in the best interests of your children, not necessarily yourself. In my family law practice, I do my best to ensure that my client’s children are handled with care, and you should hire an attorney who does the same. Firstly, your attorney should encourage you to have open communication with the other party when it comes to caring for your children. I encourage my clients to partake in co-parenting classes. Learning how to co-parent will save you a ton of time, a ton of fees, and a ton of heartbreak. Secondly, your attorney should neither encourage nor tolerate alienation tactics. Parental alienation is a form of child abuse. Keeping your children from seeing their mother or father out of spite only hurts them and hinders their progress. Your attorney should not only discourage this type of behavior but should take affirmative steps to ensure it never happens in the first place.
In conclusion, you have options when it comes to choosing the right divorce attorney for you. Your decision should be made weighing several factors. The idea that the best lawyer is forceful, combative, and obstinate is outdated and incorrect. Lawyers who adopt a belligerent persona do not do the best job for their clients, particularly in divorce cases when children are at issue. Clients should seek out an attorney who zealously guards their interests and advocates for them. But this does not mean being vengeful or taking extreme positions. Keep in mind that putting on an obnoxious show can entertain clients, but it rarely advances the client’s case, so choose wisely.
