“Woman’s Divorce Finance” – Be Very Careful

In the Sunday, May 1, 2011 edition of the New York Times on page 25 of the main section there is a full-page ad for an organization called “Woman’s Divorce Finance. “  The ad states “[W]e don’t just fund your divorce – we manage it.” The website for Woman’s Divorce Finance states” there are no up-front fees and no asset minimum  required….[and]  payment is based upon a percentage of the  assets and support payments you receive in any settlement or other legal  resolution of your divorce.”  The only access to the website to obtain more information requires an interested woman to fill out a form giving biographical information, the name of the person’s lawyer, if represented, income information and provide a narrative about the marriage and lifestyle. The site promises that someone will contact you as soon as possible. That’s it. The ad and website make no representations about or identification of the people or professionals – if indeed they are – who purportedly will “manage” and “fund” a woman’s divorce. It appears that the purpose of the ad is to suck a woman in, determine what the income and assets are and obtain a contingency fee based on what assets the woman receives or a percentage of support payments. The percentage  paid to “Woman’s Divorce Finance” is not specified in the ad or on the website.

The website pitch clearly implies that “Woman’s Divorce Finance” will control (“manage”)  the legal strategy and lawyer providing legal representation. There are ethical restrictions in most states which prevent non-lawyers from practicing law.  How “Woman’s Divorce Finance” gets around this detail is unknown. “Managing” someone’s divorce sounds like legal representation. A woman considering using Woman’s Divorce Finance” must be very wary. Make no mistake, the intent here is for Woman’s Divorce Finance” to profitably “manage” a woman’s divorce. Woman’s Divorce Finance thus has a financial stake in the outcome of the divorce settlement or litigation. In many states it is unethical for a lawyer to have a contingency fee or stake in the outcome of a divorcing party’s child support or alimony. If a lawyer  – or anyone else – has a financial interest – in the outcome they may not act in the client’s or the children’s best interest – but act in their own interest.

Anyone considering this option must be very careful. There will be a contract that Woman’s Divorce Finance will ask you to sign. Take this contract to your lawyer or a trusted professional advisor before you sign anything. You must completely understand what stake this organization has in your assets and support payments before you sign any contract. Equally as important, you must understand what Woman’s Divorce Finance will do to “manage” your divorce case and whether your lawyer will agree to be “managed.”

I would like to hear from women who have used Woman’s Divorce Finance to fund their divorce and about their experience and outcome. Please post a response.

What You Need to Know About Attorney Fees in Divorce

Before you make the final decision to hire a divorce lawyer you need to completely understand how the divorce lawyer will charge for his or her legal services and costs. Attorney fees are fees charged by a lawyer for time spent on your case. Generally,  a lawyer is free to set his or her attorney fees subject to state ethics or professional conduct rules. Attorney fees are usually charged in increments of time. The most common unit of time is 6 minutes which equals .1 hour of the attorney’s time. The time increment is then multiplied by the attorney’s hourly rate. (For example, .1 hour [6 minutes] x $350.00/hour is $35.00). It is important to know whether the attorney will charge a minimum of .1 hour for a task even if he or she spends less time or, alternatively, will charge the exact number of minutes/hours spent on a task. For instance, opening and reading an e-mail may take only 3 minutes but the charge will be for 6 minutes (.1 hour) because 6 minutes or .1 hours is the smallest unit of time the lawyer charges.

For some tasks a lawyer may charge a set or flat fee. For instance, the lawyer’s services for obtaining a judgment of absolute divorce, which takes minimum paperwork and time in court, is charged at the flat rate of $500. This protects you from unanticipated time charges that may occur from a lengthy wait in court or other unexpected events. It may also benefit the lawyer if he or she can obtain several divorce decrees at one court appearance. Most lawyers will not charge a set fee for a divorce case which has several contested issues.

Expenses or costs are charges you incur in the divorce case not including attorney fees. Examples of these expenses are: court filing fees, private investigator or expert fees, court reporter and transcript fee, legal research fees  such as LEXIS or WESTLAW and accounting or forensic fees. Lawyers bill these costs directly to the client to pay or  the lawyer may advance the cost and charge it back to the client on his or her bill.  Lawyers usually bill expenses at their actual cost.

Some lawyers charge for the exact cost of postage, long distance telephone calls, copying costs and other office costs while others charge a set monthly administrative fee which covers all of the above individual costs.

The engagement or retainer agreement specifically spells out how the lawyer will charge you for attorney fees and costs. The retainer agreement should state the hourly rate of each attorney and paralegal or other staff who may work on your case. Read the retainer agreement before you sign it. If you later get into a fee dispute with your lawyer, the law presumes you read the agreement and understood it before you signed it.

Most divorce lawyers also require an advance payment or retainer of a certain amount before agreeing to retention by the client. These retainers, in North Carolina and many other states, are held in a trust account until earned. A lawyer earns fees when specific tasks are complete and billed to the client. Once billed, the funds earned  are moved from the trust account to the lawyer’s operating account. The retainer payments are usually also refundable. This means that if the lawyer resolves your case prior to the retainer being used up, or for any other reason the lawyer does not complete the work and retainer funds remain in trust, the lawyer returns the remaining trust funds to the client after deducting any fees and expenses due and owing. Many retainer agreements also require the client to advance additional funds,  in trust, when the original retainer is depleted  or when upcoming events, such as a hearing or trial,will require work that exceeds the value of the funds remaining in the trust account.

It is important to understand that the number of contested issues in a case, a hostile opposing party, the difficulty of dealing with the opposing lawyer and other issues can increase your attorney fees both with regard to the original retainer and the amount of attorney fees you may ultimately pay. Further, remember that every time you talk to your lawyer, exchange emails or have interactions with a paralegal or other staff member about your case they charge for the amount of time they spend or the minimum time increment of .1 hour. You should consolidate your questions and keep phone calls and emails to a minimum. It is very common for clients to substantially increase their attorney fees because of the frequency of unnecessary phone calls and emails. When you receive a bill from the law firm, review it carefully and ask any questions immediately. Lawyers prefer to resolve questions or issues about bills soon after sending a bill to a client.

The First Appointment with Your Divorce Lawyer

You arrive at the office of the divorce lawyer feeling a little nervous. You have the records and documents you were asked to bring with you. What happens now? First you are made welcome by the receptionist and likely asked to fill out a sheet with basics such as your contact information and information about your spouse and children, date of marriage and separation. Next, the lawyer will come out to meet you and take you back to his or her office or a conference room. Often the lawyer will have a paralegal or associate lawyer sit in on the consultation to take notes  and participate in the meeting. The consultation does not cost more if there is a second lawyer or paralegal present. Expect to spend one to two hours consulting with the lawyer.

Generally, most lawyers will want to first hear the facts and circumstances about the marriage. It is important to give a complete and detailed description of the facts and circumstances in the marriage that led to you consulting a divorce lawyer. These facts form the foundation for the legal advice regarding alimony, custody, distribution of property and other issues the lawyer will give you during your consultation. Do not leave anything out. If you leave out facts, especially the embarrassing or unpleasant facts,  the lawyer’s legal advice may not be valid. You can be sure there is very little a divorce lawyer has not seen or heard before. Remember, everything you say to the lawyer and any associate lawyer or paralegal is completely privileged and confidential. Do try to stay on point.

The lawyer will also ask about your financial circumstances. This will include information about you and your spouse’s assets, income and standard of living. Hopefully, you will bring several years of tax returns (both business and personal) and financial statements to the consultation for the lawyer to review. The financial information allows the lawyer to provide advice on what you can expect with regard to payment or receipt of child support and/or alimony and distribution of property. No lawyer cannot predict exactly what amounts of money you may pay or receive and more likely will give an estimate of the range of payments and duration based on his or her experience.

No lawyer  can or should guarantee a specific result and you should not expect a guarantee. Be very leery of a lawyer who promises  or guarantees anything other than to make his or her best effort to obtain a successful result. Also do not hire a lawyer who appears to mirror your own anger at your spouse.

During the consultation you should ask all the questions you have and wrote down before the meeting. Write down the answers or make notes so you don’t forget what the lawyer says in response. You should also decide how you feel about the lawyer while talking to him or her. Are you comfortable and do you feel relaxed? Do you feel like the lawyer is trustworthy and the advice you are getting is believable?  Or does the lawyer seem intimidating, cold and distant?Do you feel like you might be “bothering” the lawyer if you call too often? Does the lawyer denigrate or “put down” the opposing lawyer, question their fees or more (very unprofessional and a poor attempt to make himself or herself look better). You need to hire a lawyer to whom you can talk and with whom you can work. Divorce is a team effort between you and your lawyer and his or her staff. While the lawyer’s credentials and experience are very important, so are his or her interpersonal skills. This is a close working relationship. You need to feel good about the lawyer you hire.

Ask the lawyer what he or she proposes as a strategy in your case. If your case is not yet in the courts the emphasis is on obtaining the financial and other information needed to resolve the case in mediation or arbitration and not go to court. Resolving your case in court is the last option as it is the most expensive alternative and emotionally difficult. If your case is already in litigation and court hearings are unavoidable, the emphasis is on a strategy that seeks pre-trial settlement while preparing for court at the same time in case negotiations are unsuccessful.

Before you leave the consultation, talk to the lawyer about the financial arrangements for attorney fees and expenses and how they are paid.  Most attorneys will ask for a fee advance or retainer. The retainer is placed in a trust account and drawn out as the work is completed. The amount will depend on a number of factors including whether the case is already in litigation, whether there have been prior lawyers in the case as well as the size and nature of the case. Anticipate that a case with  several million dollars in assets or a contentious custody fight will cost substantially more than a simple divorce case, If asked, most lawyers can, once they have sufficient information about a case, give you an estimate of fees and costs. However, hostility of the opposing party, court delays and the difficulty in dealing with the opposing lawyer can all cause attorney fees to increase through no fault of your lawyer.

Get your agreement with the attorney in writing. Most lawyers have an engagement letter or contract which spells out all the terms, financial and otherwise, with which you must agree in order for the lawyer to represent you. Read the entire agreement and make sure you understand it. If you have questions about the engagement agreement make sure you get your questions answered before signing.

Preparing for Your First Appointment with A Divorce Lawyer

You decide to consult with a divorce lawyer and call for an appointment. What now? Here are steps you can take to make your initial consultation productive and informative.

A. If you forgot to ask what documents to bring with you to the appointment, call the law firm and ask the lawyer’s secretary or paralegal what documents regarding your and your spouse’s property and finances you should bring to the appointment. Here is a basic list:

1. Three years of personal tax returns;
2. If there is a family owned business, 3-5 years of the business tax returns;
3. Two years of financial statements and/or loan applications which show your joint and separately titled assets and debts;
4. Copies of the most recent investment or brokerage account statements;
5. Copies of the most recent retirement account statements for you and your spouse, if available;
6. Copies of the most recent bank account statements for any bank account for both parties;
7. Copies of your most recent mortgage or line of credit statements.

Make copies of the documents, if possible, and organize them into categories in a simple file folder you can leave  with the lawyer if you decide to hire her or him. Don’t worry if you do not have all the documents the attorney requests that you bring with you to the appointment. If you hire the attorney to represent you she or he can get them when needed.

B. Prepare a factual, written statement of basic, but important information including the following:

1. The full names of both spouses and children (whether born of the current or a prior marriage), dates of birth, social security numbers and residence addresses;
2. Your complete contact information and that of your spouse;
3. The date of marriage and date of separation, if separated;
4. Dates of any prior marriages and divorces and name and addresses of a former spouse;
5. Education and employment history of both spouses. Employment history should detail each employer, position held, compensation and reason you or your spouse left the job or are no longer employed at the company;
6. Any criminal history, domestic violence or other court history of either spouse;
7. Significant health issues of either spouse or of the children including diagnosis, date of diagnosis, treatment and necessary future care and health insurance provider;
8. Any information regarding suspected infidelity of your spouse;
9. Brief statement of reasons you believe marriage is failing.

C. Prepare a list of questions you want to ask the lawyer. This will help you keep on point during the consultation.

D. Decide whether you want to take a close friend or relative with you to meet with the lawyer and whether you want the friend or relative present during the actual consultation. Your communication with the lawyer is privileged - meaning that the lawyer cannot disclose your confidential statements to anyone else. However, generally, if a third-party is present when  you and the lawyer are speaking, the presence of the third-party may void the attorney-client privilege because the presence of the third-party indicates you don’t expect the communications to be confidential. If your case goes to court, the third-party, or you, could be required to divulge what you and the lawyer say to each other during the interview. If you want a third-party present, make sure you discuss this issue with the lawyer before the consultation to make sure your statements are clearly confidential communications.

E. Before you go to the appointment make sure you know what the consultation fee is and how much time you will be able to spend talking to the lawyer. Some lawyers may bill for their time on an hourly basis and charge their normal hourly rate. Other lawyers may charge a flat fee for a consultation. Be prepared to pay the consultation fee on the day of the appointment.

F. Take a deep breath…you are ready and the consultation will go well.

 

Finding the “Right” Divorce Lawyer……

Hiring a divorce lawyer is an intimidating process. Most likely your spouse says he or she wants out of the marriage, your case is in the courts, or you are thinking of separating and want to know your legal rights and obligations. How do you go about finding a lawyer?

1. Ask several of  your friends. Many people have been in the same situation and either hired a divorce lawyer or know someone who has. This is a good place to start. If you hear the name of one particular lawyer several times that is a good sign. If you know any lawyers or judges ask them if they know of the lawyer or can find out. Hearing from several sources that a lawyer has or does not have a good reputation is good information.  Remember, though, every case is different and that what happened to your friend in his or her divorce does not mean that the lawyer will obtain similar results for you.

2. Google the lawyer’s name or firm name. If the lawyer has a website you will find it. A website will tell you a lot about the lawyer’s experience, achievements and ability as well as provide information on the divorce process. Be wary of websites that have hundreds of pages and videos – so much that the information is overwhelming. This is about marketing the lawyer’s services more than providing information so you can make an informed choice about hiring an attorney. Experience counts.

3. Find out if the lawyer is a Board Certified Family Law Specialist. Lawyers who are Board Certified must have a certain number of years of experience in the practice of divorce and family law and generally devote over 50% of their practice to divorce and family law matters. The most important and prestigious organization that certifies divorce and family lawyers is the American Academy of Matrimonial Lawyers (AAML). Fellows elected to the AAML are  Board Certified by their state bar, have a substantial number of years of experience, show the ability to litigate complex cases, have outstanding references from judges and other lawyers and make significant contributions to the profession by way of teaching or writing about divorce and family law issues. Lawyers who are Fellows of the AAML are the best family and divorce lawyers.

4. Check with the State Bar and find out whether the lawyer has ever been reprimanded or censured for unprofessional or unethical behavior. If so, you need to carefully consider the choice of this lawyer to represent you.

5. Before you call to make an appointment for a  consultation, ask yourself what kind of person you want to represent you and what you want from your relationship with your lawyer. Do you want a partner in the process or just to turn over the case to the lawyer and let the lawyer handle it. Some lawyers are good listeners – even after the initial interview – and  will return phone calls. Other lawyers will turn your case over to an associate and rarely take your phone calls. Some lawyers are patient and don’t mind explaining things three times, others are impatient and annoyed if you ask too many questions. My advice is that you look for a lawyer who, on a gut level, you like and feel is trustworthy. If you feel at all intimidated, or your gut instinct is that this is not a good working relationship then listen to your gut. There is nothing worse than having to fight your ex-spouse and fight or be angry or annoyed with your lawyer at the same time. You need to have confidence in the lawyer you choose to represent you.

6. Consider having consultations with two or three lawyers. You will get a perspective on how each lawyer thinks about your case and proposes to handle it as well as a sense of  how you and the lawyer relate to each other.

7. Make an appointment for your consultation(s). Do not try to “interview” the lawyer over the telephone. You will miss a lot of important information – the kind you get from talking to someone face to face. Ask the person setting the appointment what the consultation fee is and how you pay for it (cash, check or credit card). Expect to pay the consultation fee at the time of the consultation.  Ask what the lawyer’s retainer fee is. Generally, there is a range of what the retainer fee is depending on a number of factors including the nature and complexity of your case and whether it is in litigation. For instance, you should expect that a contentious custody case will be more costly than a case where the children are not an issue. Or a case where you and your spouse own significant assets or a business will cost more to resolve than a case where there are few assets. Finally, ask the person setting your appointment what documents you need to bring with you.

 

 

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Pre-Divorce Planning: Should I Read my Spouse’s Email?

If you are thinking about separation and divorce and you suspect your spouse is having an affair you may think about checking your spouse’s email to see if there are any emails which are romantic or sexual in nature between your spouse and another man or woman. Do NOT do this without getting specific legal advice about what is illegal under the laws of your state and federal law. Generally, federal and many state laws prohibit intercepting wire or electronic transmissions. An email sent from one computer to another over the internet is an electronic transmission.  Illegal interception of an electronic transmission may subject you to criminal prosecution or civil fines and penalties.

In divorce cases, unaware that they are breaking state or federal laws, and before consulting a divorce lawyer, people frequently access their spouse’s email account, open and read their spouse’s email or place software on their spouse’s computer which intercepts their emails. If the other spouse discovers the illegal interception, it can become leverage in the divorce case because of potential criminal or civil consequences.

There are limited circumstances where it is legal to read your spouse’s emails. After emails are downloaded, opened and read, they are stored in a temporary file on the computer and no longer reside on the email server of the internet provider (e.g. AOL, Yahoo or Google). Even if the email is deleted, the file containing the opened email still exists on the computer hard drive. Generally, it is not illegal for another person to read these emails if – and this is a big if – the person seeking to read the emails in the temporary file has legal access to the personal computer which stores the emails. This means that the computer is one used by both spouses, without restrictions, or is a computer to which one spouse gave consent to the other spouse to use. If the computer containing the stored emails is a computer used solely by your spouse, or is a computer which you do not have permission to use, or the computer or file is password protected then you should not access the emails stored on the computer. Lack of consent to access your spouse’s computer or password protection indicate that the computer user/owner may have a reasonable expectation of privacy in the computer or its files; violating this reasonable expectation of privacy could result in a claim against you for invasion of privacy – more leverage in a divorce case.

If you suspect that your spouse is carrying on an adulterous affair and using his or her email account to communicate with the third-party, the better course of action is to consult a divorce lawyer and arrange for imaging the computer under suspicion. Computer imaging creates an exact duplicate of a computer hard drive at that particular point in time. The lawyer may then seek consent of your spouse to read the emails or court authorization to ensure that there are no violations of the law or invasion of privacy concerns.

Pre-Divorce Planning: Part 2 – Should I Leave or Should I Stay?

Part 2 of  “Pre-Divorce Planning” focuses on additional steps a spouse who anticipates being separated should take.

1. Prepare a list of all expenses associated with the household over a 12 month period, no matter who currently pays the bills. This will include mortgages, utilities, telephone, credit cards, car loans, groceries, clothing, insurance, doctor, dentist, prescription drugs and more. Add up the bills for each category for a 12 month period and arrive at a monthly average. Keep copies of the bills, canceled checks and credit card statements that you use to prepare the itemization. Your lawyer will want this supporting documentation and the opposing side will ask for it if your case is in the courts.

2. If you do not have the documents that identifies the property owned by you and your spouse start looking around the house. Look for all the documents you can find that identifies any asset owned by you and/or your spouse. Start with tax returns which reveal  investment and bank accounts, real property and more. Search for investment and bank account statements, deeds, business records and insurance appraisals.  Copy the documents that you find and keep them in a place where your spouse cannot locate them.  A word of caution here: do not break into a locked desk used only by your spouse or search for documents on a computer that belongs to your spouse without consent, especially if the computer or files are password protected. You could make yourself vulnerable to a charge of invasion of privacy.  Using the documents you have located prepare a balance sheet of your and your spouse’s assets and debts. Write down all the property you and your spouse own including real estate and personal property. Personal property will include bank account balances, investment accounts, retirement accounts such as IRA’s, SEP’s and pensions, businesses, art, jewelry, collections and more. Identify each item specifically whether by address or account number. If you know the balance or value of the particular asset write that down. If you do not know the value make your best estimate; a later appraisal can set the true value.  In the debt or liability section write down the amount of each debt. Liabilities may include mortgages, credit lines, installment loans or credit card balances. The difference between the value of your assets and the amount of debt is your net worth. Be aware that the laws of each state with regard to dividing marital property vary and you will ultimately need a lawyer to tell you whether a particular piece of property on your balance sheet is marital or community property.

3. If you have children, and custody or visitation may become an issue, keep a journal of your involvement with the children. This ranges from getting the children up in the morning, feeding them breakfast and getting them to school to attending after school sports activities, parent-teacher conferences and taking them to the doctor or dentist. Also write the details of your spouse’s involvement, or lack thereof. You will not recall the details six months to a year from now if you find yourself in a custody fight.

4. If there is verbal abuse, hyper-critical or demeaning behavior by your spouse towards you, keep a journal and write down the specifics of what occurs. Describe the event with specificity; include the date and time, who was present, the location and other particulars. Details are much more convincing than a generalized statement that your spouse criticized you “all the time.” Keep the journal in a safe location. If you are the victim of domestic violence, for your own safety and that of your children, you should immediately contact an abused women’s shelter or service for specific advice.

5. Don’t say or do anything to your spouse that you would not want to hear again in court or read about in the newspaper. This includes (but is not a complete list): any act of domestic violence or harm, verbal abuse (cursing, unwarranted criticism, meanness), excessive or inappropriate discipline of your children, sexual abuse of your spouse or children, publicly demeaning, humiliating or criticizing your spouse in front of friends, relatives or others or dominating or controlling behavior.

6. If you are seeing a therapist, be very clear with the therapist about what he or she will write in your records. There is a probability that if  the divorce becomes litigated the opposing side will request copies of your medical and/or psychological records. While some states protect psychological records from discovery, some do not, particularly if your mental or emotional distress is an issue or custody of children is in play.

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