Chapter II: Finding, Interviewing, and Hiring a Lawyer

KAREN:

Your choice of divorce lawyer is one of the most important steps you will take in extricating yourself from your marriage.  The lawyer you pick -- whether he is a white-haired, elder-statesman type, or if she is renowned for her aggressive litigation tactics -- will set the tone for your matter and will determine many aspects of how it proceeds through the negotiation process, and, if that fails, into the courthouse.

Professional credentials are important, but it is also critical that you have a good rapport with your attorneys.  You have to feel comfortable telling him or her about the intimate personal and financial details of your life -- sometimes things that you have only ever confided to your sister, your closest friend, your therapist, or no one.  Therefore, you should interview several attorneys -- some from large firms, some from small "boutique"-type firms, some men, some women.  Many women express a strong preference for being represented by a female attorney, thinking that "she will understand" what they have "gone through." This is a short-sighed, one-dimensional view.  Not all female attorneys are automatically warm, nurturing, and sympathetic to your plight; not all male attorneys are misogynistic jerks.  Do yourself a favor and interview attorneys of both genders.  One older (male) attorney of my acquaintance expressed his view on this point, in particular with respect to women who have been stay-at-home wives and mothers:  "Women shouldn't really want to represented by female lawyers, who, after all, have to haul themselves out of bed every morning, go to the office, and make a living.  Those aren't the lawyers who are going to be sympathetic to the stay-at-home moms.  What those wives really need is to be represented by a chauvinistic a**hole who thinks that women are naive and need to be protected."  Ahem!  While this largely self-serving view is, admittedly, equally offensive to women professionals as well as women who have chosen to devote themselves to home and family, let it be food for thought when selecting your attorney.  

    It is critical that you hire a lawyer who specializes in the matrimonial field.  You wouldn't go to a dermatologist to set your broken arm, or consult an ophthalmologist for an ulcer, would you?  Well, when it comes to your divorce -- quite possibly the most important personal and financial transaction to which you will ever be a party -- you shouldn't hire that nice guy who handled your real estate closing ten years ago, nor your cousin's husband the patent attorney in Cleveland, nor the corporate lawyer your best friend employed to take her company public.  Unless you live in a very small town, where some attorneys are still generalists handling a wide variety of matters, the legal profession has become very specialized.  (However, even if yours is a "Main Street" case, you should still try to find someone who handles more than one divorce per decade and has more than a passing acquaintance with the domestic relations law of your state.)   

ELAINE:

New York City is a very small place.  Move there, stay a while, have kids and by the time they're in kindergarten you couldn't commit a crime without everyone knowing that it was you.  Nearly nine million people and yet when you are about to embark on a divorce your whole world shrinks even more.  At least that's how it felt to me.  I wanted to be discreet but I needed help.  How was I going to find a lawyer?  I wasn't about to pick one from the gossip columns . . . my life didn't resemble anything like the lives of the people I read about.  So I called my closest friends, only one of whom is divorced.  All the others have been in long happy marriages.  But the one piece of good news is that at least everyone knew someone or a friend of a friend who had been divorced.  I got my short list.  Curiously to me, but not to those in the know, the same names came up over and over again.  Now the hard part.  I had to put on my "big girl" pants and start dialing for lawyers, hoping that I would get in to see one of these people without hearing the dreaded news that my husband had beat me to it.  I was lucky, he hadn't, and I was free and clear to start this miserable exercise.  So lucky.  

I didn't notice it at my first visit, but every divorce lawyer has a box of Kleenex on their desk. Gee, I wonder why?  After my third visit to an attorney's office it finally dawned on me that the Kleenex tissues didn't just miraculously appear.  I now have visions of office managers at these firms ordering crates of this stuff for all the weepy dames who file in.  I was one of them.  I didn't arrive for my appointments looking this way of course.  I made every effort to pull myself together with a smart suit, good shoes and appropriate bag and I would always attempt to do something with my hair.  Which if you know me can be an unruly mess.  But no matter what I did to make myself presentable, I always emerged from a consultation looking the same way.  Kleenex in hand, big red nose and mascara running down both sides of my face.  I looked and felt like a dishrag.  There was nothing I could do.  The attorney would politely ask for my background information, the length of my marriage, etc., and then it would happen.  I would just keen from the pain and humiliation and reach for the Kleenex.  I hated myself for not having more control but I really couldn't help it.  It just hurt so much.  (Karen assures me that I shouldn't have been embarrassed because "everybody cries when they see their divorce lawyer. We see more tears than anybody but the shrinks.")  Then would leave their office buildings (they all seem the same), catch a glimpse of myself in the lobby mirror and conclude one thing:  I look like a mental patient.  I suspected that every attorney in one of those buildings must have clucked to themselves, "there goes another one." During those early days I may have been just that.  My confidence was shot, I was convinced I was homely and stupid and let's face it -- I'm lousy with numbers.  What was the use?  

    During what I thought were happier times, when my husband was being besieged by telephone calls from corporate attorneys working on one of his deals, I used to joke that "someday I want to be a client."  I figured that way, I could get all the attention AND a cup of coffee.  Now the prospect of being someone's client didn't seem so funny to me anymore.  Matrimonial law is different.  Very different.  One of the attorneys I met with actually held my hand as I shook uncontrollably telling him about the events of my life.  "What am I going to do?....He ruined my life . . .  wha-what will happen to me and my girls?"  I just couldn't stop crying.  Then he told me I had nice legs and mentioned something about seeing a movie.  What?  Time to go.  This was going to be harder than I thought.  One lawyer spent most of his time complaining about his bad back.  All I wanted to do was complain about my life.  It seemed fair.  He might have had a bad back but at least he wasn't getting a divorce.  I also met with an attorney who told me that once I got a divorce I was giving license to my children and future generations of our family to get a divorce. This came as quite the revelation, as at this point I wasn't giving permission for my kids to have certain sleep-overs, much less get a divorce thirty years from now.  This attorney was on his third marriage and is considered to be one of the pre-eminent matrimonial attorneys in New York.  So much for love in the big city.  

And then I found him, my hero, my Bill.  Well, not exactly, he IS a divorce lawyer for God's sake.  He would agree.  He's no angel but I needed a quarterback and he was the guy.  That's how I met Karen, of course.  I have to digress for a moment and say although Karen and I would meet at a later stage in my case, it was fortuitous for a lot of reasons.  The first reason -- and I hope you never do what I did during the early stages of negotiations -- was that I was too embarrassed to admit to Bill that I was having trouble following the financial complexities of my case.  I clammed up and did a lot of head-nodding in agreement and feigned complete understanding but I didn't know what the hell he was saying.  Karen must have sensed my unease, smelled the fear, and gently told me as Bill was busy bellowing at my husband's lawyer over the phone one day that she would go through the numbers with me after our meeting.  She was a life saver.  I should have told Bill the truth earlier but I liked the idea that he thought I was so smart and savvy.  Stupid, stupid, stupid.  Don't do this!

What really sealed the deal on my friendship with Karen, however, was the day a few months into my case when Bill remarked to us about a "blind" item that had appeared in one of the city's tabloid gossip columns earlier that week.  Speculation had been rife about the identity of the un-named matron "of a certain age" with an impeccable pedigree who had been caught in flagrante with her 15-years-younger boyfriend in one of the dressing rooms at a Madison Avenue boutique.  Bill had heard that morning that the mystery woman was rumored to be "Mrs. X," the widow of a former politician.  I had seen her around town for years at one charity benefit or the other, a victim of some very bad plastic surgery, and all I could think was "Ugh!  SHE'S having sex?!"  Now, Bill, being of a "certain age" himself (sorry, Bill), was getting quite a chuckle out of this, but I thought my head was going to pop off and Karen was slack-jawed. We silently telegraphed to one another over Bill's head, and Karen gave me the high-sign that we would discuss after the meeting.  As she walked me to the elevator a couple of hours later, we were like a couple of busy-body high school girls.  "Wait a minute -- How could this be?"SHE has a boyfriend?"  "She's a hag!"  "She doesn't even have that much money!"  "What's wrong with US? We're attractive, aren't we?"  (Aren't we?)  We laughed ourselves breathless.  At that point, I knew that I not only had another great lawyer on my team, I had a friend.  

Wait -- where was I?  Oh yes -- my initial consultation with Bill:  despite my best efforts, I had to reach for the Kleenex.  Funny, after you do this a few times, you don't even have to lift your head to look for the box -- you just reach in front of you and it's there.  But Bill said some things to me that no one else had.  First, he wanted to emphasize to me that at any time if I wanted to stop the proceedings he would do so.  No questions asked.  He told me of several "almost" clients that in spite of the worst odds had managed to patch things up and stay married.  He hoped the same for me.  He then asked me to do one thing. He asked me simply to take a deep breath and call me after the summer when I had had a couple of months to think about things.  If I still wanted to proceed with the divorce, he would be right there.  There was no need to rush, he told me, divorce was a long and expensive process.  Don't rush.  In the meantime, he advised me to start pulling together as much financial information as possible, and at that I started blubbering all over again.  "What's wrong now?"  he wanted to know -- was the money all gone?  No, I finally had to admit that maybe I hadn't been the perfect wife after all.  I was terrible at handling money and that I had wasted a small fortune on pretty clothes.  I was so ashamed!  "That's it?That's the big dirty secret?" he bellowed. "Yes."  He took one look at me, chuckled a little bit, and leaned right across his desk and said, "kid, you're gonna need 'em."  I couldn't help myself; I really liked him.  

Sadly, by mid-August things had deteriorated so much with my husband that I sent Bill's retainer agreement and payment back to him by FedEx.  I once told my husband that I would have traded every friendship away knowing the integrity of our marriage.  I couldn't have been more wrong and my heart couldn't have been more broken.  But I couldn't make that mistake with my lawyer.  I had to be able to trust him and he had to be good.  Really good.  Not long after, when I told my husband that I had hired Bill, he went into a rage that I hadn't hired the nice family man and grandfather I had described to him.  His attorney had told him that Bill was one of the toughest, most relentless S.O.B. trial attorneys in the city.  A pit bull.  I only knew one thing.  I was in love again.   

KAREN:  

 So, how DO you go about finding a lawyer?  The first place to start is with those very attorneys I indicated in my previous post (#1 of 4) -- the guy who handled your real estate closing, your cousin's husband the patent attorney, etc. -- with whom you have dealt before, but who shouldn't represent you in your divorce.  In fact, they almost certainly won't want to represent you in your divorce, and will be relieved to refer you to colleagues in the matrimonial field.  If you have friends who have been divorced, ask them if they were satisfied with their attorney and obtain names that way as well.  If you see a therapist, ask her for a referral.  (The divorce rate being what it is, mental health professionals often know of divorce attorneys through other patients or from couples they have counseled.)  Most local bar associations will also be able to give you a list of attorneys in a particular specialty.  Finally, you will also be able to use online resources such as lawyers.com or martindalehubbell.com to come up with a list of divorce specialists in your area.  

Once you have gathered the names of three to five reputable divorce attorneys, call and make appointments for initial consultations.  This should give you enough of a cross-section of the local matrimonial bar for you to give yourself a choice, without interviewing so many that they all become a blur.  Yes, there is a well-known tactic (employed by no less than Tony Soprano during Season Five of the Sopranos, when he and Carmela have separated) in which one spouse interviews literally every high-powered divorce lawyer in town, for the purpose of "conflicting out" the other spouse from retaining any of those attorneys.  (Once one spouse has interviewed an attorney, thus revealing private, confidential information, that attorney cannot ethically even meet with the other spouse.  That is why, when you call to make an appointment, you are asked the name of your spouse.  It is for the purpose of the law firm performing a "conflicts check" before you come in.)  I would not, in any event, recommend this tactic.  It's transparent; it's time-consuming; and it's expensive (you have to pay for all those consultations), and at the end of the day it's more important that you focus your energies on hiring an attorney because you trust him and have confidence in his abilities, rather than trying to outwit your spouse.  

  Divorce attorneys are quite used to the idea that people "shop" for representation and they will understand that at the initial consultation you are not necessarily ready to make a commitment to hire them.  However, the initial consultation is not free.  I have always been surprised at the number of people who consult me and are taken aback that I charge for the time I expend at the initial consultation, at my usual hourly rate. I finally realized that this is because so many people see the subway ads and late-night television commercials for personal injury attorneys, which always trumpet the fact that "the initial consultation is FREE!"  That is because personal injury attorneys work on a contingency basis, receiving a percentage of the monetary award the secure for their clients; that is NOT how most other attorneys, including divorce lawyers, are compensated.  Most attorneys sell their time for a living, and they are not going to give it away for free.  Would you go to a doctor for a consultation and expect her not to charge you?  No, of course you wouldn't.  This is no different. 

Ideally,  you should come prepared at the initial consultation to discuss the following matters:

        *A general marital history, including any concerns you may have concerning child custody, grounds for divorce, and spousal abuse.  

        *The existence of any prenuptial agreement between you and your spouse. 

        *Your and your spouse's income. 

        *Your family's assets, whether they are in your name or your spouse's.  Title is often irrelevant to the determination of what constitutes marital property, so just because you have kept an account in your own name, or because the house is titled in your husband's name, doesn't mean that those assets aren't marital property subject to division.  Try to be thorough, and include on your list every asset, including your home (or homes), interests in businesses or professional practices, bank accounts, securities accounts, retirement accounts, and personal property such as antiques, jewelry, etc. 

        *Your liabilities, including the extent to which your home is encumbered by a mortgage or home equity line.  

        *The extent to which your assets are derived from potential "separate property" sources, i.e., property you owned prior to the marriage, or property you inherited or were gifted by someone other than your spouse.  

        *Your monthly budget -- i.e., how much money it takes to sustain your normal marital lifestyle, including everything from housing and utilities to private school tuition for your children, to medical expenses to groceries to insurance to entertainment expenses.  

Note that I said that you would "IDEALLY" come prepared to discuss these issues.  Many people, in particular the non-monied spouse (often the wife) have not had access to income tax returns, bank statements and the like, or, more likely, simply have not paid attention to such matters. 

(More on this in Chapter 3.)  The attorneys you consult will be quite used to clients who have only partial knowledge of the family finances.  Part of the attorney's job during your divorce proceeding will be to ferret out that information, but obviously, to the extent you can provide your prospective attorney with more rather than less information at the initial interview the better he or she will be able to advise you as to the probable outcome.  

During the initial consultation, the attorney likely will conduct an "intake" interview (much like a new doctor has you fill out a medical history at your first visit), explain in general terms the law applicable to your case, and will give you his or her viewpoint as to how the case should be pursued.  You will also be given ample opportunity to ask questions.  Here is a sample list, by no means exhaustive, of questions you might want to ask: 

        *Does the fact that my spouse had an affair and/or is an alcoholic and/or is physically abusive impact the child custody issues or financial issues in this case?  

        *What do you think the likelihood is of my case settling? 

        *Do you think we have to litigate?

        *Do you yourself litigate, or do you refer those matters to trial counsel?

        *How long will this process likely take, both if we pursue settlement, or if we litigate? 

        *How much do you think this will cost in terms of legal fees and expert fees?      

        *What do you see as my financial entitlements or obligations?

        *My spouse won't move out of the house.  Are we going to have to live together throughout this process, or is there some way I can get him/her out?

        *Will I get custody of our children?  How much time will they spend with each of us after the divorce? 

        *After the divorce, I want to be able to relocate to my hometown where my family will be able to help out with the kids.  Is that going to be an option for me? 

        *How will we handle the finances while this matter is pending? Who will pay the bills? 

        *What other attorneys in the office will be working on my case?  May I meet them today?

        *Do you know my spouse's attorney?  (Oftentimes, one spouse "lawyers up" before the other, so you may well know the name of your spouse's attorney at the time of your initial consultation.)  Do you work well with him/her?

        *What are your hourly rates?  What is your retainer?  (Keep in mind that once you hire an attorney, she must enter into a full-blown retainer agreement with you that sets forth in detail the terms of her representation, including the hourly rates of every attorney who will work on your case, the amount of the retainer, etc.)

There are also observations that you should be making during your initial consultation, including:

        *Am I comfortable with this person?  Do they seem sensitive to my personal plight as well as knowledgeable about the law?

        *Am I being treated with respect?

        *Are my questions being answered without me being made to feel ignorant?

        *Is the attorney taking detailed notes?  Does he/she seem organized?

You should take notes during the initial consultation.  You are being imparted a huge amount of information, and although you think you will remember it all, you won't, particularly when you are interviewing a number of lawyers and trying to distinguish among them. 

After you have interviewed a few attorneys, it's time to make a choice and hire one, and sometimes that choice can be a difficult one.  Keep in mind that, human nature being what it is, it is tempting to go with the lawyer who boasts, "we're gonna take him to the cleaners!" or "we're gonna kill the bastard in court."  THIS IS NEVER A GOOD SIGN.  It smacks of someone who is telling you what you want to hear in order to sign up a new client, rather than someone who is giving serious, dispassionate professional consideration to your case.  Yes, we all know that YOU would like to rip out your spouse's pancreas with your bare hands in retaliation for all the hurt, betrayal, and humiliation you've suffered, and, believe me, if the lawyer were in your shoes, he or she would want to do the same thing.  But here's the thing:  the lawyer isn't in your shoes. The bottom line is that you should hire the lawyer in whom you have the most professional confidence, and not the lawyer who articulates most colorfully the revenge fantasies that float through your mind.  

One final word: it is imperative that you be absolutely truthful during your intial consultation and throughout your relationship with your attorney.  Don't be too "embarrassed"  to reveal sexual or financial peccadilloes.  Remember, this person is not your maiden great-aunt or your son's sweet young nursery school teacher; they are professionals who have pretty much "heard it all."  They are unlikely to be shocked by anything you have to tell them.  If you hold back, the attorney will not be able to give you appropriate legal advice.  SO:  Affair(s) with the pool boy/au pair/online dominatrix?    Drug use?  Porn addiction?  Tax fraud?  Two words:  Fess up!