Volume 18, Number 7
October/November 2001

Divorce Cases

How to Communicate with Clients, Get the Information You Need, Manage the Case, and Get Paid

By Richard J. Podell

When my family law practice started more than 32 years ago, we had two employees-a lawyer and a secretary. The secretary took notes in shorthand and made copies with carbon paper. There were no copy machines, dictating machines, or fax machines, no computers or cell phones. Now our firm has grown to a staff of nine people, including four lawyers, a legal assistant, two secretaries, a bookkeeper, and a receptionist.

Modern technology has changed the way we practice law, even as the practice has become more specialized, technical, and challenging. A divorce lawyer is a combination lawyer, counselor, clergy person, financial planner, tax advisor, and friend. Divorce for most people is a financial and emotional roller coaster. Above all else, a successful divorce lawyer needs to be sensitive to the client's emotional needs without attempting to become the client's therapist. And to maintain a successful practice, lawyers need to take steps to ensure that they are paid for services provided.

Getting Started

Initial telephone call. A potential client's first impression of a law firm usually occurs when he or she makes the initial phone call. This first contact creates an immediate and continuing image of the firm in the client's mind and can favorably or unfavorably affect all future relations. It is extremely important to handle the initial phone call in a professional manner. You'll need to check for conflicts, so keeping a current conflicts list is very important. Also, you'll want to get a feel for whether the caller can afford your services.

Consultation. If the potential client wants to come in for a consultation, you may or may not want to charge for your time and services. Your expertise has a value, and it shouldn't be given away. Or you may want to consider incorporating the charge for the consultation in the billing for the work to follow. Whenever possible, determine who referred the case to your office, and send a note thanking that person for the referral.

If the case is already pending, tell the client to bring basic records to the consultation, including tax returns, financial statements, and court records. Always get the client's telephone number in case the appointment must be rescheduled-but be sure to determine how a call can be made to avoid embarrassing or compromising the client. Clarify where you should send correspondence. Have a checklist of possible information that you wish to obtain from a prospective client, and review it before the client comes to the office. Items may include the following:

  • Name, residence address, and all telephone numbers (check for maiden and former names).
  • Mailing address (suggest opening a post office box to preserve confidentiality).
  • Business address and telephone number(s) (including fax).
  • Name, residence address, and telephone number(s) of other party.
  • Dates and places of birth, social security numbers, and religion of each party.
  • Health status of each party (physical and emotional).
  • Prior marriages of each party and details of termination(s).
  • Children of current and/or prior marriages and custodial arrangements.
  • Financial obligations (or rights) from prior marriages.
  • Length of residence in the state and county.
  • Name and address of lawyer representing other party.
  • Date and place of marriage.
  • Existence and terms of prenuptial or postnuptial agreement.
  • Whether wife is pregnant.
  • Names, dates of birth, social security numbers, and educational status of children.
  • Children's physical or emotional problems, if any.
  • Party with whom children reside (and previous visitation arrangements, if any).
  • Date of separation and which party left the family residence.
  • Counseling and therapy history, if any.
  • Prior separations or court action(s).
  • Grounds for divorce or other relief.
  • Client's objectives (divorce, legal separation, reconciliation) and other party's objectives.
  • Behavior patterns of the parties toward each other.
  • Current employment status of the parties, including income, perquisites, and possible bonuses.
  • Employment and income history and income potential of each party.
  • Educational background of each party.
  • Contributions of each party to the relationship or to career enhancements.
  • Income of each party from sources other than employment and expectancies; for example, inheritances, stock options, dividends, or trusts.
  • Life insurance of each party (term or straight life, cash surrender value if applicable).
  • Each party's assets, including marital, nonmarital, separate community, and quasi-community property (pension plans from previous employers, collectibles, receivables, life insurance cash values, and income tax refunds).
  • Joint assets of the parties.
  • Identification and tracing of nonmarital or separate property of each party.
  • Identification of gifts and inheritances of the parties.
  • Incomes and other assets of the children, with identities of custodians or trustees.
  • Current and potential liabilities of each of the parties, individual and joint (including income tax liabilities).
  • If either party is self-employed or in business: type of business or profession; product or service; stock ownership; number and identity of shareholders, partners, directors, and/or officers; identity of CPA; and interest of the other party.
  • Safe deposit boxes, location, contents, and parties having access.
  • Manner of handling family finances.
  • Manner in which household and family bills are paid and whether spouse and children receive adequate support.
  • Financial records, location, and discovery needs.
  • Existence of domestic abuse, known addictions, threats to transfer assets or other facts warranting injunctions, orders of protection, and other interim relief.

Initial Interview
One of the most important stages of any case is the initial interview. This is your opportunity to get to know your client, develop a good relationship, get an understanding of what the case is about, and reach an agreement about your fees.

This is your opportunity to explain your background and expertise, which will establish credibility for the client. It is also the time to gather as much information as possible to determine whether this is a case you want to take, and whether you can do something to assist the client. Draw up a written fee agreement to avoid misunderstandings at a later time, and collect the retainer fee that you deem appropriate. Also clarify with your client how you will be paid if the retainer is used up. Explain to the client how bills are sent (preferably on a monthly basis).

After you understand the basic facts in the case, walk your client through the steps of the divorce action and the basic issues. Determine if you have subject matter and personal jurisdiction. Explain the procedures and discuss some of the key issues as you visualize them at that point. Don't promise more than is possible, because that will only lead to an unhappy client down the road.

If a client brings friends or family to the initial interview, explain that having the third party involved in the initial interview would constitute a waiver of confidentiality. If the client insists that the person sit in on the interview, tailor the interview with the waiver of confidentiality in mind.

If another lawyer, legal assistant, or secretary will be working with you on the client's case, introduce that person to the client. Let the client know that if you are unavailable, he or she can deal directly with the appropriate staff member. At the initial meeting, clients are often in a state of mind that prevents them from remembering everything that is said, so put as much of your advice as possible in writing. After the meeting, send the client a letter outlining the divorce procedures, how the client should behave, the key issues, what the client wants to accomplish, and your role in the case. In the file, keep memorandums on how and where the fee agreement was signed and what was explained to the client. Always explain the fee agreement to your client. If family or friends will pay the fee, these third parties must also sign the fee agreement.

In order to ensure that you get all the information you need, give each client forms that ask for all necessary financial information, and set a deadline for the client to complete and return them. While a case is pending, send copies of all correspondence and pleadings to your client. Keep written notes of all telephone conferences with as much detail as possible. Save all written documentation from the client, including holiday greeting cards or thank you notes. Try to answer all telephone calls from clients and opposing counsel as soon as possible. Keep accurate time records and send monthly statements to all clients. If a client is upset, do your best to work through the problem-remember, your best client can become your worst adversary.

Case Strategy
You may need to determine whether to file a divorce action immediately or wait to see if the other side will do so. If your client has been abused, obtain a restraining order. Determine whether tax implications might affect filing of the action. However, immediate action and a quick filing might be best for the emotional needs of the client. Address the issue of bank accounts and other assets that could be drained or moved to another state. Where parties are in different states or countries, decide which would be the appropriate or most advantageous forum.

Witnesses. An important decision is whether or not experts will be necessary. Real estate, furniture, personal property, retirement plans, or businesses may need to be scrutinized by an expert. Develop a plan and general strategy. Determine as soon as possible your potential trial witnesses. Experts are probably necessary for property issues. Vocational experts or psychologists may be necessary to determine spousal support. A mental health professional can be very helpful in answering questions about emotional stability or other problems. If a custody case exists, consider family, friends, and impartial third parties such as teachers or clergy. Sometimes the parents of neighborhood children can be good witnesses. It may be necessary to consider hiring a private detective to gather certain information. If the spouse is spending lots of time with a paramour, that could be helpful information. Your experts will probably have to testify. Let them know the court date as soon as possible.

Temporary relief. A hearing for temporary relief may be critical. Sometimes temporary awards continue for a year or two and can have a tremendous impact on the final outcome of the case. Prepare financial information for the hearing and have witnesses ready, if necessary. When determining strategy, it sometimes becomes apparent that the client's goals are unrealistic-address this issue immediately, or it might come back to haunt you later. Once you and your client are operating on a relatively similar wavelength, it is time to contact the other lawyer to seek a stipulation for temporary relief.

In every case, it is worthwhile to see whether a matter can be resolved by agreement. If serious obstacles exist to resolution of the case, then some consideration should be given to the suitability of mediation or arbitration outside the court system. After the case is filed, there should be some discussion with the client as to whether or not a substitution or change of a judge would be appropriate. If you and your client discuss that issue and reach an agreement, draw up a letter memorializing the understanding. If the case gets to a point where your client is too demanding or the requests are unreasonable or unethical, withdraw from the case as soon as possible.

Gathering of information. You will need social security numbers of all parties, including children, and details to determine whether or not the marriage was actually valid. Be sure you have all telephone numbers, including home, business, cell phone, car phone, and beeper. In addition, the client should advise you of any plans to go out of town. When you reach a stipulation for temporary relief or resolution of a certain matter-how you're going to apportion Christmas vacation, for example-put the agreement in writing and have the parties sign it.

After you determine jurisdiction, strategy, and possible witnesses, you must decide how you're going to gather other relevant information, e.g., by interrogatories or depositions or informally. Using interrogatories initially may be best, with the information obtained from them providing the basis for questions at a deposition or for informal exchange. Financial affidavits. Financial statements are necessary for temporary relief hearings and final divorce actions. Most judges require them at pretrial conferences. The client's actual expenses-rent or mortgage, taxes, utilities, car payments, and insurance payments-should be easy to determine Be as exact as possible about recurring expenses. Some clients keep accurate records on software programs such as Quicken; other clients have no idea what they spend. Also calculate nonrecurring expenses such as household repairs or projected expenses such as a new roof, driveway, painting of home, new car, orthodontia services, etc. Be sure your client reviews the financial statement carefully before signing, because mistakes or omissions will be used by the other side.

When considering expenses, be sure to include the needs of the children. Even though most states have child support guidelines, exceptional educational or physical needs sometimes require additional support. Some states permit college expenses to be covered; others do not. Alimony or spousal support is always a difficult issue, because there are no guidelines, and every case is different. This issue may call for additional witnesses, such as vocational experts, accountants, or financial planners. Spousal support payments must terminate upon death of the recipient, or they will not be deductible. Be sure to calculate projections on the tax impact of any spousal support.

Property Division
Community property states follow the principle derived from traditional Spanish law that the marital partner has effected a "co-partnership or community of equal interest." Marriage automatically vests and forever entitles each partner to equal co-ownership in all property and interest to property acquired during the marriage, except for certain specified items. Equitable property states hold to the principle that the court determining the case is vested with ultimate discretion to make whatever division of the parties' overall property holding is "equitable." Exact rules vary from state to state, but all attempt a more or less equal division of property that came to the parties during the marriage, with exceptions for separately gifted or inherited property.

Few states still hold to traditional noncommunity, nonequitable property rules. Nevertheless, the ultimate result often is the same as for states that are guided by community or equitable property rules. Regardless of specific rules, the parties have the right to agree to divide the property as they see fit. It is always best to try to get the parties to reach an agreement on all property issues.

Marital assets can be divided "in kind" or "in value." If a couple has 500 shares of Microsoft, each can receive 250 shares of the stock, or one person can receive the entire stock, with the other receiving half of the value as of a certain date. Sometimes title and tracing ownership can be critical issues-if a person inherited stock but sold it, or worse yet, transferred proceeds into a joint account, that action can lead to problems. Pensions usually can be divided using a qualified domestic relations order (QDRO), but not always. Social security benefits also should be considered. Life insurance may have a great value in protecting alimony or child support (if the payor dies, it is nice to leave a life insurance policy substitute for the monthly obligation). Cash value may need to be divided if it is a whole life policy.

Consider other factors such as goodwill in a business, personal injury damages, tax considerations, debts, and education loans. Stock options have a number of components that should be examined by an accountant. One party may have a civil cause of action against his or her spouse.

In some instances, you may want some form of protection against a party's discharging an obligation in bankruptcy. There is no guarantee that property division won't be affected by bankruptcy, but you can make it more difficult by expressing the intent of the parties, explaining the consideration, stating that the parties are equitably estopped from going through bankruptcy, and leaving maintenance open for the sole purpose of being used if one party does discharge his or her property division obligations.

Custody and Placement
Thirty-two years ago, mothers were awarded custody of minor children in 95 percent or more of cases. In most states today, fathers are awarded joint legal custody, and the physical placement issues often serve as the battleground. Fathers are seeking and obtaining sole, shared, or joint physical custody in at least 50 percent of all cases. Some states start with the premise that joint custody is most appropriate, while others consider who has been the primary caretaker, preferences expressed by the children, and possibly the tender years doctrine.

Preference of the child is often a major consideration. The weight given the child's preference varies with the child's age, maturity, and quality of reasons. Courts also may be influenced by whether the child's preference has vacillated during the custody dispute. Generally, if a child expresses a strong preference and supports that position with good reasons, the court will consider such wishes. Family, religion, and schools are all issues that come into play in determining custody. More and more, the parties' ability to cooperate with each other is a major factor. Placement of the children as to both parties varies from state to state and case to case. Oftentimes, placement is part and parcel of the child support orders.

Placement of the children can be a simple or a complex issue. It can't be denied to one party of a divorce case unless there is a showing that the child would be endangered by that party. Sometimes it's important to seek supervised visitation. Most psychologists believe that with young children, there should be frequent visitation; as the child gets older, visitation can occur in larger blocks of time but less frequently. Visitation of third parties, such as grandparents or others who have helped raise the child, can be a problem. As a general rule, the wishes of the biological parents will determine who visits the children.

However, if a third person has assumed the role of a parent for a substantial period of time, that person may be awarded certain rights. Other issues arise if a custodial parent wants to move from the state where the child has been living. The courts try to determine what is best for the child. This issue may be best suited for mediation and stipulation.

Modification
Temporary and permanent court orders and judgments of divorce may be subject to change upon the filing of a motion to modify or upon the court's own initiative. Generally, the matters subject to change are spousal support, child support, placement, moving a child permanently across state lines, and, in some instances, property division. Incorporate as much detail about plans for dealing with change as possible to the final marital settlement agreement or the court record. Most courts are reluctant to permit any change in the divorce decree unless there is a substantial change of circumstances. Once again, mediation or arbitration outside the court may be a useful vehicle to deal with the modification.

Richard J. Podell is president of Richard J. Podell & Associates, S.C., in Milwaukee, Wisconsin.

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