If your lawyer is honest, she or he will tell you at the first appointment that more than 98% of all divorce cases settle by negotiation or mediation. Knowing that you are all but certain to settle and not be involved in a trial of your issues, it makes perfect sense to be fully informed about the benefits, risks, and costs of different ways to go about a divorce: mediation, collaboration, cooperative negotiation, hard-ball negotiation, and litigation. With this information, few of our clients see themselves putting their case before a judge. Most opt for attempting to reach their own effective solutions in private through the careful and well guided use of mediation or collaboration or cooperative negotiation.
Public trials in open court should be reserved for extreme cases, such as cases where people are dangerous to themselves or others. And, you certainly need an experienced divorce litigator for those. But, remember, less than 2% of cases fit in this category.
It is wise, maybe even essential, that you have an attorney guiding you in these processes, one who has a teamwork approach. You need a guide because divorce is not your daily work! Equally unfamiliar to you is how to select a lawyer. Some ask their trusted religious advisors. Others get referrals from friends or relatives. Still others call the lawyer referral service of the local bar association. The most dangerous path is to look at advertisement offering free consultations or suggesting that the attorney will fight vigorously for your rights!
If you are comfortable, ask the people you know who have had a successful divorce – one in which the family estate was not consumed in the fight and where the post-divorce relations are healthy and not contentious. Who were the lawyers for that couple?
However you get a name, when interviewing an attorney, keep your own common sense about you. Trust your instincts. Even if you are in a world of hurt, do you really want a war? An attorney who will do all the talking, all the work for you? Sometimes this sounds like just what you want. On the other hand, consider hiring an attorney who can understand why you hurt and then work calmly and effectively with you to create as good an outcome as possible. Although you still will likely end up with a settlement if you retain an attorney who does all the work and talking for you, you will probably have a result that is not tailored to your family and is far from ideal but which is nevertheless binding on you.
A team-playing lawyer will not take over the entire process, but rather will listen to your story, give you advice, review your budget work, help you select supporting professionals to assist you with understanding child development or long term financial considerations, if needed. Such a lawyer will create an excel spreadsheet of your budget and your assets and debts, run sample support guideline scenarios, thus allowing you to see how options for settlement may affect you. You and your lawyer will generally brainstorm likely outcomes and strategies for a successful negotiation and go into that process feeling ready and confident.
This is VERY different from an attorney who offers a free consultation, let’s you talk for 20 minutes about your no good, very bad spouse, and then says, “I will take care of you.” Attorneys who oversell their abilities to give you exactly what you THINK you want at the outset of a very upsetting process generally have to back up later, at your expense. It is far better to have a realistic assessment of the likely outcomes, a plan for preserving as much parental connection as is feasible, and guidance on how to accomplish a successful transition to separate households.
By this point, you can see that both the selection of the process by which you create a settlement and the selection of the attorney to guide and support you through it can have a big impact on the long term post-divorce environment. Consider, for example, how likely you are to want to consult your former spouse about challenges facing your child if you have come through a bruising negotiation (or, Heaven forbid, a trial!) versus having been guided through a mediation or negotiation with an eye toward such future decisions?
Negotiation about your family and its finances and assets is hard work, perhaps the hardest work you will ever do. Mediation is no different. It may seem, therefore, that it might be preferable to let your lawyer do the work and the talking for you. However, most people are better served by being integrally involved in the preparation for and in the actual process of negotiations.
At Nichols, Sacks, Slank, Sendelbach & Buiteweg, we have all seen clients who have come to us after the damage is done, after a settlement is signed or a judgment entered. Others come when their resources have been stretched to the breaking point on formal discovery and motions to the court. The spouses are financially and emotionally drained and NOW the attorneys are saying, “The judge wants us to settle this. Here’s how it is going to happen.” Not having a full participatory voice in the process of settling your divorce can lead to a baffling conclusion and a long period of misery! Don’t let that be your outcome.