Chapter 2

Working With Your Attorney

If there is one thing you can be sure of in your divorce, it’s that you will be given plenty of advice. Well-intentioned neighbors, cousins, and complete strangers will be happy to tell you war stories about their ex or about their sister who got divorced in New York. Many will give you free advice about what you should do, even though they know little about the facts of your case or the law in Virginia.

There is one person whose advice will matter to you: your attorney. Your lawyer should be your trusted and supportive counselor and advocate throughout your divorce. The advice of your attorney can affect your life for years to come. You will never regret taking the time and making the effort to choose the right attorney for you.

2.1 Where Do I Begin Looking for an Attorney for My Divorce?

There are many ways to find a divorce lawyer. Ask people you trust—friends and family members who have gone through a divorce—if they thought they had a good lawyer (or if their former spouse did). If you know professionals who work with attorneys, ask for a referral to an attorney who is experienced in family law.

Search the Internet. Most good attorneys have websites that provide information regarding their practices areas, professional associations, experience, and philosophy.

2.2 How Do I Choose the Right Attorney?

Choosing the right attorney for your divorce is an important decision. Your attorney should be a trusted professional with whom you feel comfortable sharing information openly. He or she should be a person you can trust, as you will rely upon your attorney to help you make many important decisions throughout the course of your divorce.

Gather at least three names from referrals or the Internet. This short list should include attorneys who practice primarily or solely in the family law area. Next, compare and contrast the attorneys on your short list, seeking the best fit for you and your case.

Determine the level of experience you want in your attorney. For example, if you have had a short marriage, no children, or few assets, an attorney with less experience might be a good value for your legal needs. However, if you are anticipating a custody dispute or have complex or substantial assets, a more experienced attorney may better meet your needs. There is usually a correlation between the years of experience and the hourly rate charged by an attorney.

Look at the websites of each of the attorneys you are considering. Call each of the offices for preliminary information including availability and hourly rates. For each call consider whether you are treated with prompt and professional courtesy.

Consider the qualities in an attorney that are important to you. Even the most experienced and skilled attorney is not right for every person. Ask yourself what you are really looking for in an attorney, so you can make your choice with these standards in mind. Fit is important.

Some attorneys offer a free consultation, especially early in their career when they are in the process of building their practices. The best family law attorneys are busy, so they are unlikely to offer free consultations. Consider interviewing one or more attorneys. You will likely have to pay for these interviews, but it may be worth it for you in terms of finding the best attorney for you and your case.

It is important that you be confident in the attorney you hire. If you are unsure about whether the lawyer is really listening to you or understanding your concerns, keep looking until you find one in whom you have confidence. Your divorce is very likely to be the most important legal matter you will ever have to deal with, so it’s critical that you have a professional you can trust.

2.3 Should I Hire a “Bulldog” — a Very Aggressive Attorney?

Again, consider the qualities in an attorney that are important to you. A “bulldog” may promise to be aggressive and take your spouse for everything he or she is worth, and that approach may suit you. Alternatively, it may be important to you to create a mutually respectful relationship with your spouse during and after the divorce, especially if there are minor children involved.

Additionally, expect the cost of your divorce to exponentially increase if your attorney is unwilling to negotiate and drags your spouse into court at every opportunity. Look for a lawyer who can competently and energetically represent you, while at the same time maintain a high level of courtesy, professionalism, and integrity. The best divorce attorneys know how to effectively represent you in court, but they sincerely seek to assist you in resolving things fairly and by agreement, if possible.

2.4 Should I Interview More Than One Attorney?

Be willing to interview more than one attorney. Every lawyer has different strengths, and it is important that you find the one that is right for you. Sometimes it is only by meeting with more than one attorney that you see clearly who will best be able to help you reach your goals in the way you want. One difficulty is that people going through a divorce change during the process.

Emotion often rules with a stronger hand at the beginning of the process and it is not uncommon for people to dismiss in their minds the possibility of going to court. Then, in some cases, they realize that at least the threat of court is necessary for a fair settlement. That is why in most cases you want an attorney who is a competent trial attorney (and thus a credible threat in the other party’s mind), but who wants to also help you settle.

2.5 My Spouse Says Since We’re Still Friends We Should Use the Same Attorney for the Divorce. Is This Possible?

No. An attorney is ethically prohibited from representing both sides in a divorce case.

It is not uncommon for one party to retain an attorney and for the other party not to do so. In such cases, the party with the attorney files the complaint, and agreements reached between the parties are typically sent to the spouse for approval prior to any court hearing. If your spouse has filed for divorce and said that you do not need an attorney, you should nevertheless meet with a lawyer for advice. Sometimes couples reach an agreement without understanding all of their rights under the law. A party will benefit from receiving legal advice on issues such as support, tax considerations, retirement, and health insurance coverage.

2.6 What Information Should I Take With Me to the First Meeting With My Attorney?

Attorneys differ on the amount of information they like to see at an initial consultation. If a court proceeding has already been initiated by either you or your spouse, it is important to take a copy of any court documents.

If you have a prenuptial or postnuptial agreement with your spouse, that is another important document for you to bring to the first meeting.

If you intend to ask for support, either for yourself or for your children, documents evidencing income of both you and your spouse will also be useful. These might include:

• pay stubs
• individual and business tax returns, W-2s, and 1099s
• bank statements showing deposits

A statement of your monthly budget will need to be prepared if you or your spouse seek recent spousal support. Your attorney can provide you with the form that he or she prefers.

If your situation is urgent or you do not have access to these documents, do not let it stop you from scheduling an appointment with an attorney. Prompt legal advice about your rights is often more important than having detailed financial information in the beginning. Your attorney can explain to you the options for obtaining these financial records if they are not readily available to you.

2.7 What Unfamiliar Words Might an Attorney Use at Our Meetings?

Law has a language all its own, and divorce law is no exception. Some words you might hear include the following. Additional terms are listed in the glossary.

• Court— the judge; the courthouse
• Divorce— actual order of divorce, or entire process of divorce
• Plaintiff— spouse who files the divorce complaint
• Defendant— spouse who did not file the divorce complaint
• Jurisdiction— authority of a court to make rulings affecting a party; locality where divorce action is filed
• Service— process of formally notifying a party about a legal filing
• Discovery— process in which the parties provide information to each other pursuant to court rules
• Parties— the divorcing spouses
• Guardian ad litem— attorney appointed to represent a child or children

Never hesitate to ask your attorney the meaning of a term. Your complete understanding of your lawyer’s advice is essential for you to partner with him or her as effectively as possible.

2.8 What Can I Expect at an Initial Consultation With an Attorney?

Some attorneys will ask that you complete a questionnaire or an information form prior to or after the first meeting.

The nature of the advice you get from an attorney in an initial consultation will depend upon whether you are still deciding whether you want a divorce, whether you are planning for a possible divorce in the future, whether you are ready to file for divorce right away, or whether a divorce case has already been filed. During the meeting you will likely discuss the following:

• the history of the marriage
• background information regarding you, your spouse, and your children
• your immediate situation
• your intentions and goals regarding your relationship with your spouse
• any information you are seeking from the attorney
• any questions you may have

You can expect the attorney to provide you with the following information:

• the procedure for divorce in Virginia
• identification of the issues important in your case
• preliminary discussion of the substantive issues
• information regarding him or herself
• information about fees and costs
• initial advice

Although some questions may be impossible for the attorney to answer at the initial meeting because additional information or research is needed, the initial consultation is an opportunity for you to ask all of the questions you have at that time.

2.9 Will the Communication With My Attorney Be Confidential?

Yes, your lawyer has an ethical duty to maintain confidentiality regarding you and your case. This duty of confidentiality also extends to the legal staff working with your attorney. Realize, however, that the other party’s attorney can gain relevant information from you through discovery requests or by questioning you in court.

2.10 Is There Any Way That I Could Waive the Attorney-Client Privilege, as It Relates to Confidentiality?

Yes. To ensure that communications between you and your attorney remain confidential, and to protect against the voluntary or involuntary waiver of such privilege, below are some tips to consider:

• Be careful to talk to only your most trusted friends or family regarding your discussions with your attorney.
• Social media provides the potential for waiving the attorney-client privilege by publicly disclosing confidential information. Do not post information or send messages relating to your case on Facebook, Twitter, or other social media websites.
• Do not post information relating to your case or communications with your attorney on a personal blog, video blog, in online chat rooms, or online message boards.
• Do not use your work-related e-mail to communicate with your attorney, or to discuss your case.
• Depending upon your employer’s policy relating to electronic communication, the attorney-client privilege may be waived by communicating with your attorney or by discussing your case through your personal e-mail account (Gmail, Yahoo, etc.) via a company computer. To ensure your communications remain confidential, it is best to only communicate via e-mail from your private e-mail address from a personal and secure computer.
• Do not forward e-mails from your attorney to others, especially not to your spouse.

2.11 Can I Take a Friend or Family Member to My Initial Consultation?

Yes, having someone present during your initial consultation can be a source of great support. You might ask him or her to take notes on your behalf so that you can focus on listening and asking questions. Remember that this is your consultation, and it is important that the attorney hears the facts of your case directly from you. Also, ask your attorney how having a third party present at your consultation could impact the attorney-client privilege. As a minimum, do not make any confessions or disclosures (adultery, for example) with a third party present.

2.12 I Had an Affair and I Am Uncomfortable Admitting This to My Attorney. I Don’t Want Anyone Else to Know

It is important that your attorney know as much as a possible about your case in order to give you the best possible advice.

2.13 Will What I Tell My Attorney Remain Confidential?

Your attorney has a duty of confidentiality, so he or she cannot discuss your case with anyone outside of the case. However, your spouse’s attorneys can send discovery requests to your attorney seeking information relevant to your case. Absent an exception such as a Fifth Amendment claim, your attorney will have to provide the other attorney with relevant information, even if you would prefer that it not be disclosed. If there is a hearing or trial, the other attorney can question you directly on any issue that is relevant to the case.

2.14 I’m Worried That I Won’t Remember to Ask My Lawyer About All of the Issues in My Case. How Can I Be Sure I Don’t Miss Anything?

Since you are reading this book, you are clearly focused upon being educated regarding the divorce process and issues. Meet with your divorce lawyer on a regular basis. Make a list of developments, facts, and questions to discuss with your attorney. Providing your attorney with written notes will likely save you money and her time as she can read your notes in less time than it would take her to talk to you and make notes.

2.15 What Exactly Will My Attorney Do to Help Me Get a Divorce?

Your attorney will play a critical role in helping you obtain your divorce. Your attorney may perform any of the following tasks on your behalf:

• Advise you regarding your rights and responsibilities under the law
• Develop a strategy for advising you about all aspects of your divorce
• Assess the case to determine which court has jurisdiction to handle your divorce
• Prepare legal documents for filing with the court
• Counsel you regarding the risks and benefits of negotiated settlement as compared to proceeding to trial
• Inform you of actions you are required to take
• Conduct discovery to obtain information from the other party, which could include depositions, requests for production of documents, and written interrogatories
• Support you in responding to discovery requests from opposing counsel
• Obtain necessary witnesses and documents by serving subpoenas
• Perform financial analysis of your case
• Conduct legal research
• Calendar and keep you advised of all deadlines and court appearances
• Prepare you for court appearances and depositions
• Prepare your case for hearings and trial, including preparing exhibits and interviewing witnesses
• Appear with you at all court appearances, depositions, and conferences
• Assist you with any postdivorce tasks
• Perform other work to assist you in the handling of your divorce case

2.16 What Professionals Should I Expect to Work With During My Divorce?

Depending upon the issues identified by your attorney, you could possibly work with various professionals, such as appraisers, financial professionals, vocational experts, real estate agents, or mental health experts.

Additionally, in some cases where custody or visitation issues are disputed, the court may appoint a guardian ad litem. This lawyer has the duty to represent the best interests of the child. A guardian ad litem has the responsibility to investigate you and your spouse as well as the needs of your child, and to advocate on behalf of your child or children.

Another expert who could be appointed by the judge is a psychologist. The role of the psychologist will depend upon the purpose for which he or she is appointed. For example, the psychologist may be appointed to perform a child-custody evaluation, which involves assessing both parents and the child, or this expert may be ordered to provide therapy to members of the family.

In many cases there are no professionals involved except the attorneys for the parties.

2.17 May I Bring My Children to Meetings With My Attorney?

It’s best to make other arrangements for your children when you meet with your attorney. Your attorney will be giving you a great deal of important information during your conferences, and it will benefit you to give your full attention.

It’s also recommended that you keep information about the legal aspects of your divorce from your children. Knowledge that you are seeing an attorney can add to your children’s anxiety about the process, and bringing them to your attorney’s office involves them too much in the divorce process.

Most law offices are not designed to accommodate young children and are ordinarily not child proof. For both your children’s well-being and your own peace of mind, arrange for someone to care for your children when you have meetings with your attorney.

2.18 What Is the Role of the Paralegal or Legal Assistant in My Attorney’s Office?

A paralegal, or legal assistant (the terms are used interchangeably in this book), is a trained legal professional whose duties include providing support for you and your lawyer. Working with a paralegal can make your divorce easier because he or she is likely to be available to communicate with you. It can also lower your legal costs, as the hourly rate for paralegal services is less than the rate for attorneys.

Paralegals are prohibited from giving legal advice. It is important that you respect the limits of the role of the paralegal if he or she is unable to answer your question because it calls for a legal opinion. However, a paralegal can provide the attorney’s answers to questions between meetings, and can provide information to you throughout your divorce.

Paralegals can help you by receiving information from you, reviewing documents with you, providing you with updates on your case, working with you on discovery responses, and answering questions about the divorce process that do not call for legal advice.

2.19 My Attorney Is Not Returning My Phone Calls. What Can I Do?

You have a right to expect your telephone calls to be returned within a reasonable time by your lawyer. Here are some options to consider:

• Ask to speak to the paralegal or another attorney in the office.
• Send an e-mail or fax telling your lawyer that you have been trying to reach him or her by phone and explaining the reason it is important that you receive a call.
• Ask the receptionist to schedule a telephone conference for you to speak with your attorney at a specific date and time.
• Schedule a meeting with your attorney to discuss both the issue needing attention as well as your concerns about the communication.

If your calls are not being returned, take action to get the communication with your lawyer back on track, or consider changing attorneys.

2.20 How Do I Know When It’s Time to Change Lawyers?

The following are questions to ask yourself when you’re deciding whether to stay with your attorney or to seek a new lawyer:

• Have I spoken directly to my attorney about my concerns?
• When I expressed concerns, did my lawyer take action accordingly?
• Is my lawyer open and receptive to what I have to say?
• Am I blaming my lawyer for bad behavior of my spouse or opposing counsel?
• Have I provided my lawyer the information needed for taking the next action?
• Does my lawyer have control over the complaints I have, or are they governed by the law or the judge?
• Is my lawyer keeping promises for completing action on my case?
• Do I trust my lawyer?
• What would be the advantages of changing lawyers when compared to the cost?
• Do I believe my lawyer will effectively support me to achieve the outcome I’m seeking in my divorce?

Every effort should be made to resolve your concerns directly with your attorney. If you have made this effort and the situation remains unchanged, it may be time to switch lawyers. Changing lawyers during a divorce is quite common, though you should exercise due diligence and have reasonable expectations to avoid multiple attorney changes once the divorce case has begun.

2.21 Are There Certain Expectations That I Should Have When Working With My Attorney?

Yes. Your attorney will be able to provide you with support and guidance during this process. There are certain actions you can expect of your attorney during your divorce. A list of some of them follows.

Explain the legal process during each step of your case. Understanding the legal process reduces the stress of your divorce. Your attorney can guide you each step of the way.

Listen to your concerns and answer any questions. Although only the attorneys can give you legal advice, everyone on your team (which may consist of a paralegal or a legal assistant and an associate attorney) is available to listen, to provide support, and to direct you to the right person who can help.

Identify important issues, analyze the evidence, and advise you. Divorce is complex. Often there is a great deal of uncertainty. Your attorney can analyze the unique facts of your case and advise you based upon the law and his or her expertise.

Communicate with the opposing party’s attorney to try to resolve issues without going to court, and to keep your case progressing. Although your attorney cannot control the actions of the opposing party or his or her lawyer, your attorney can always initiate communication as your advocate. Telephoning, e-mailing, or writing to opposing counsel are actions your attorney can take to encourage cooperation and to keep your divorce moving forward at the pace you want without the expense of contested litigation.

Think creatively regarding challenges with your case and provide options for your consideration. At the outset, you may see many obstacles to reaching a final resolution. Your attorney can offer creative ideas for resolving challenges and help you to explore your options to achieve the best possible outcome.

Facilitate the settlement process. Although your attorney cannot force the other party to settle, your attorney can take action to promote settlement. He or she can prepare settlement proposals, suggest settlement conferences, and negotiate on your behalf.

Support you in developing your custody and visitation arrangements. Many parents do not know how to decide what type of arrangement is best for their children. Your attorney can help you look at the needs of your children and offer advice based on his or her experience in working with families and judges.

Meet with you prior to the filing of a court action and then throughout the proceedings to advise you on actions you should take. There may be important steps to take before you initiate the legal process. Your attorney can help you to be well prepared prior to initiating divorce.

Take action to obtain a temporary court order or to enforce existing orders. Temporary court orders are often needed to ensure clarity regarding rights and responsibilities while your divorce is pending. Your attorney can help you obtain a temporary order and ask the judge to enforce his orders if there is a violation.

Support you in the completion of your discovery responses and preparing for depositions. The discovery process can be overwhelming. You will be asked to provide detailed information and many documents such as income tax returns, property deeds, and child-care costs. Your legal team can make this job easier. If your case involves depositions, your attorney will support you to be fully prepared for the experience.

Help you prepare for hearings and trial, if necessary. Hearings and trial are important and stressful. Proper preparations will reduce your stress, provide you with reasonable expectations, and enable you and your attorney to obtain the best possible outcome.

2.22 Are There Certain Things My Attorney Will Not Be Able to Do?

Yes, although there are many ways in which your attorney can support you during your divorce, there are also things your attorney will not be able to accomplish.

Force the other parent to exercise his or her parenting time. Your attorney cannot force a parent to exercise parenting time. However, be mindful that a chronic neglect of parenting time may be a basis for modifying your custody and visitation arrangements. Tell your attorney if the other parent is repeatedly failing to exercise his or her parenting time by not showing up, not coordinating visits, or not giving notice of visits.

Force the other party to respond to a settlement proposal. Your attorney may send proposals or make requests to opposing counsel; however, there is no duty to respond. After repeated follow-ups without a response, it may be clear no response is coming. At that time, your attorney will advise you whether the issues merit court action. Both parties must agree on all issues for a case to be settled without a trial. If one party wants to proceed to trial, even over a single issue, he or she will be able to do so.

Control the tone of communication from opposing counsel, or communications from the other party or the other party’s family members. Unfortunately, communication from the opposing attorney may sometimes appear rude, condescending, or demanding. Absent a pattern of harassment, your attorney cannot stop the other party or third parties from contacting you. If you do not want the contact, talk with your attorney about how to best handle the situation. Of course, appropriate communication regarding your child or children is always encouraged.

Ask the judge to compensate you for every wrong done to you by the other party over the course of your marriage. The judge does not have a free hand to impose the “justice” you may wish to receive. Instead, the judge is limited by the Virginia Code in terms of what she can order in your divorce case. It is important that you learn what the judge can and cannot do, and what outcomes are likely. Work closely with your attorney to develop reasonable expectations.

Remedy poor financial decisions made during the marriage. With few exceptions, the judge’s duty is to divide the marital estate as it currently exists. The judge will not attempt to remedy all past financial wrongs, such as overspending or poor investments. If there is significant debt, consult with a debt counselor or bankruptcy lawyer, but make sure to include your divorce attorney in the discussions.

Control how the other party parents your child during his or her parenting time. Each parent has strengths and weaknesses. Absent special circumstances, most judges will not micromanage the parents by issuing orders regarding bedtimes, amount of television watching or video game playing, discipline methods, clothing, or diet.

Demand an accounting of how a parent uses court-ordered child support. The judge will not order a parent to provide an accounting of the use of child support.

Guarantee payment of child support and spousal support. Enforcement of payment of support is only possible when it is court ordered. However, even with a court order, you may experience inconsistent timing of payments due to job loss or a refusal to pay. Talk with your attorney if a pattern of missed payments develops.

Collect child-care and uninsured medical expenses if provisions of the order are not complied with. If your order requires you to provide documentation of payment of expenses to the other party and you fail to do so, you may not be able to collect reimbursement for those expenses. Provide documentation to the other parent as required by court order, even if he or she doesn’t pay as required. Always keep a record of the expenses and payments made by each parent, and keep a copy of communications with the other parent regarding payment or reimbursement. It is much easier to keep these records on an ongoing basis than to have to locate and produce copies of old checks, day care bills, medical bills, and insurance documents at a later time.