Working With Your LawyerWorking with your lawyer while going through a divorce can be aggravating at times. While you want to get everything over and done with as quickly as possible, it can seem like it is taking forever. Sometimes this is due to the legal process, and other times it may be due to an over-booked lawyer. So how do you know if your lawyer is really working for you or not? And what can you do if your lawyer isn't handling everything properly? The following questions and answers can shed some light on the subject.
Topic: Should we use the same attorney? Karolynn's Question: My husband and I have decided to divorce. His business was started during our marriage and now is doing very well. He said that if I get my own attorney and dig into his business, he will make it worse for me. How? He said I won't get half of what I am worth or able to get. He wants me to work with one lawyer (his). Is this a bluff or truth? Brette's Answer: You definitely need to get your own attorney. It is unacceptable and unethical for an attorney to represent both husband and wife in a divorce. Get your own attorney and discuss your entire financial situation. It is common for spouses to make the kinds of threats your husband is making in a divorce. The judge is the one who will make a decision about what will happen, not your husband. All of the assets and income in the marriage must be considered. The value of a business begun and run during marriage is an asset that is divided by the court. Talk to an attorney before you jump to any conclusions about who will have to pay what. » Return to top Topic: My Attorney dropped me after taking my retainer Lori's Question: I am a 38-year-old disabled woman, and have been in a relationship for 13 years as a homemaker. My husband left me and the money is gradually stopping. I paid an attorney for a consultation, she said she would take my case and told me what to do next. When I called in a couple of days to give her a retainer, she said she could no longer take me. She recommended another attorney who took my consultation fee and my retainer. When I called him today, he also dropped me. I am getting in a rather destitute situation and cannot keep paying retainers to be dropped. I'm afraid my children and I are going to end up in the street next while my husband is making about $100,000 a year. I don't know what to do. Can these attorneys keep doing this? Brette's Answer: When you paid the first attorney, you paid for
the time she talked with you. If she decided not to take the case, there is
nothing you can do. The second attorney however accepted a retainer, which is
money paid in advance against future work. You need to ask for the remaining
retainer to be returned to you. There are several reasons these attorneys may
have decided not to work with you. If your spouse consulted them before you,
there is a conflict of interest. They may feel you don't have a very good case.
It is also possible they are finding you difficult to work with. All you can do
is find another attorney and try to keep moving forward with your case. It
sounds like you need someone to go to court and get you a temporary order of
spousal support and child support, so I would suggest you ask for that when you
contact an attorney. Good luck. Topic: Can I get part of my retainer refunded? Chris' Question: I obtained an attorney last May to divorce my husband. I paid her a large sum of money and we put the paperwork together twice. I am not out to get anything from my husband, but she tells me the court will not allow me to not receive child support even if we share custody. I don't care for her ball-buster attitude and I would like to take another route and was wondering if I'm right to ask for a portion of my money back? Brette's Answer: You can ask for the unused portion of your retainer back. You might consider mediation, which is a friendlier process. In most states, you are able to opt out of the child support guidelines as long as you explain why and the court can see that it is fair. » Return to top Is my retainer agreement still good if I had to delay my divorce? Marlene' Question: I paid a $3,000 retainer a year and a hold ago for an attorney. I signed paperwork and then asked him to hold off as my husband was working on some potential money making business deals. I am now ready to file. Is the paperwork I signed still binding to the attorney to represent my interests?. Brette's Answer: If he did not perform work to use up the retainer, he either has to work to use it up or return it to you upon your request. The only exception is if the retainer was nonrefundable and covered only your initial meetings. Topic: The documents for why my lawyer quit are sealed. Vicki's Question: Why would a divorce lawyer quit the case and seal the document that states for the reason for quitting so only the judge knows why? Brette's Answer: There are lots of reasons. Most likely the attorney has some kind of conflict. For example, maybe he represented the husband's girlfriend, maybe he once dated the wife - there are lots of reasons. If the documents are sealed then there is likely a privacy issue for someone involved. It's also possible of course that it has nothing to do with the case - for example, maybe the attorney's wife just filed for divorce and he's finding it too hard to do divorce cases. The best thing to do is just to move on and try not to worry about it. » Return to top Topic: What can I do if my lawyer won't call back? Sonia's Question: I am in the process of a very bad divorce. My lawyer has pretty much spent all the retainer already and has not helped me one bit. I have a court date in three weeks, and I have left at least 20 messages with my attorney. I have not received a return call and I don't know what to do. Can you advise me what I can do? Brette's Answer: It is very troubling when an attorney will not return a client's phone call. There are several things you can do. Call your attorney and leave a detailed message that you expect a phone call back within 24 hours or you are going to the state grievance committee. You want a detailed accounting of what your retainer has been spent on. You can also drop off a letter listing all the dates you have tried to call and the fact that you have yet to get a return phone call. Indicate that you need to speak to him or her as soon as possible or you will need to terminate his or her representation. Keep a copy of this letter. Next, you can contact the grievance committee of your state bar or state licensing board and file a complaint. If you have not heard from your attorney, or do not wish to continue with him or her at all, you should contact the court and ask them what you need to do to replace your attorney. Most of the time, you need to appear in court and tell the judge you are firing your attorney and the judge then releases the attorney from the case. If you do this, you should be able to get your court date postponed until you can hire a new attorney. Good luck. » Return to top Topic: What if my lawyer isn't doing anything? Angela's Question: My husband filed for a divorce in January, and the only thing my lawyer has done is file the response. My lawyer told me that he he would update me every 3 weeks. When I inquired about my case, his assist told me that she would ask for the assets and debts of my husband. This was a month ago and was never done. The settlement date had been set, but my lawyer has a previous court trial on that date. even though he was given a selection of dates to choose from. He has not returned my husbands lawyer's phone calls. I am sensing red flags. Should I be concerned? Brette's Answer: I think you should call your attorney and leave a detailed message with your questions and say you expect a return call within 48 hours. You deserve to be updated on your status. You can't assume nothing is happening just because you have heard nothing. If you don't get answers or you don't get answers you like, you can change attorneys, but that will delay things even more most likely. » Return to top My lawyer won't respond after I filed a complaint against him. Missy's Question: I paid my lawyer $1000.00 in March of last year, and my husband finally got served the papers in October, but didn't sign them. I just filed a complaint against my lawyer with the Attorney's Grievance Committee. Now my lawyer will not return any phone calls or e-mails. I have already faxed back the paperwork for a Order of Default to my lawyer, and I still have not heard anything. I am very upset with him. What can I do? Brette's Answer: You need to get a new attorney. It's unlikely he is going to want to continue to represent you once you've filed a grievance. What should I do if I'd like to proceed without a lawyer? Sheri's Question: My divorce has been filed with the court. However, I am unhappy with my attorney and would like to proceed without her. What do I need to do to proceed? Brette's Answer: Fire her. It's up to her to seek permission to withdraw. » Return to top Can I drop my lawyer and get a refund on the retainer? Stephanie's Question: My lawyer took my $4,500 retainer fee 7 days ago and the divorce process is not even started at all. After a week I find out that my case is simple and easy. I believe I can do it myself and I don't need a lawyer to handle my divorce. Can I terminate and ask for the remaining retainer to be returned to me? Brette's Answer: You can fire your lawyer, but this seems quite
hasty to me. It takes time to draft the papers, file them and have them served.
I think you should first talk with the lawyer about when papers will be filed.
You liked her enough to hire her a week ago; I think you should take a deep
breath and have a little patience. Retainer fees should be refundable - they are
normally applied towards future work and if that work does not happen, they
should be returned. If you are concerned about that, you could contact your
state bar grievance committee. How can I get out of paying my lawyer's interest fees? Audrey's Question: How can get out of the interest fees my attorney is charging (over $1000.00), all because it took me so long in this real estate market to sell my house. I want to pay the amount due for services and that is it. Brette's Answer: Call the attorney up and offer to pay the original billed amount in cash as a settlement if the attorney excuses the interest payments. What if my lawyer is dragging things out? Jodie's Question: How do I know if my lawyer is trying to drag out my divorce for her own financial gain? Brette's Answer: I think there is really a misperception that attorneys love to drag out divorce cases to make money. I can tell you from personal experience that a divorce case is a huge headache and is almost not worth the money to handle. Most lawyers are working to end the case in a timely manner and in a way that protects your interests. They have plenty of other cases and make enough money. It's really unlikely your attorney is trying to drag things out. However, there are of course bad apples in any bunch. If you feel your attorney is not representing your best interests, you can change attorneys. If you want to settle the case now, tell your attorney - it may mean accepting a settlement that is less than what you were asking for. Your attorney has to accept your direction. » Return to top Can I change lawyers once the divorce is started? Eve's Question: Can a person that has started a divorce change lawyers on the week of settlement meetings? Brette's Answer: You can change lawyers, but your current lawyer usually needs the court's permission to withdraw. » Return to top Can he delay the divorce just because he changed lawyers? Question: Right before my husband and I were going to the settlement conference, my husband fired his lawyer and the meeting was canceled. I feel like this was a stall tactic, but of course I can't prove it. Can I still force this issue even though he says he needs to get his new lawyer up to speed? Is there a time limit for the new lawyer to set a new date for the settlement conference? Is there anything I can do to go ahead and make this happen? Brette's Answer: Your husband has the right to replace his attorney. Doing so once is not a problem usually. However if he is asking for a large amount of time, then your attorney should make a motion to get things going. My lawyer hasn't followed through with filing motions for support. Rhea's Question: I filed for divorce almost a year ago, and my husband has been served, but he ignores everything that my lawyer sends him. My lawyer keeps saying we're going to file a motion for this, a motion for that, etc. Yet no motions for support are have been filed. Do I need to get a new lawyer? I really can't afford another one. Brette's Answer: I'm sorry to hear your case is not progressing. I would suggest you send your attorney a letter spelling out all the things you just did here. Tell him or her you don't feel your case is being given the proper attention and want a motion filed within five days. Say that if that does not happen, you will report him or her to the state grievance committee. This is likely to get his attention and get things moving. » Return to top Can we start over if I get a new lawyer? Anna's Question: After nine months, we are still going thru divorce proceedings. We went through mediation and both of us left mediation each of us thinking we were the custodial parent. We went before the judge and he ordered a physiological evaluation and set a status date two months away. My question is can I let my attorney go so that I can hire someone who will actually help me and basically start over? Brette's Answer: You can fire your attorney as long as the court allows it (in most cases this is fine unless it's going to hold up the proceeding). As far as starting over, you can't really go backwards - what's done is done- but a new attorney may have new strategies and ideas for how to handle your case. Topic: Can I hire another lawyer to be a co-council? Charmer's Question: What is the best way to hire co-council when you are fearful that you have hired a lawyer who (in your opinion) cannot meet your needs? Brette's Answer: Most attorneys would not be
comfortable with the idea of you bringing another attorney on board to work with
them. If you are unhappy with your attorney, you should find a new one and
replace him or her. Good luck! Topic: What if I can't afford to pay my lawyer up front? Claudia's Question: I'm awaiting our final trial date, which is in a couple of weeks. When I first met with my lawyer, he quoted me $5000 to get a divorce. I've now paid my lawyer over $8500, and owe almost $15,000 for three days of trial. I don't have a job and am carrying a huge debt burden, so I can't pay my lawyer all at once. I'm worried that he'll quit me before we go to trial. What can I do to keep him satisfied so that he will keep working on my case? Brette's Answer: Unfortunately, attorneys bill by the hour, so any price you're quoted up front is just an estimate and you're responsible for paying the full amount due at some point. You can talk to your attorney and ask about setting up a payment plan. Not many people have cash up front. You can also talk about the court ordering your ex to pay some or all of your attorney fees as part of your settlement or judgment. As long as you talk to your attorney and make it clear you want to keep paying, but just need a plan that works for you, it's likely he will stay on the case. It's very difficult for an attorney to simply quit - he has to get permission from the court and it's unlikely the judge will allow it so close to trial. Cases like yours are why I always suggest people try mediation first - it's just too expensive. It's also why I believe we need to make do it yourself divorces much more accessible. Good luck. » Return to top What should I do if I don't trust my lawyer's advice? Candace's Question: My mentally ill ex husband took my son out of the judge's jurisdiction with the intent of not returning him (parental kidnap). I had to get the judge and police involved to get him back. I believe I have a good chance of getting sole custody of my son, but am I taking a risk by going back to court. My attorney doesn't want to follow through, saying that the judge may still award my ex visitation rights if he gets treatment, even though he violated the judge's orders. Is my attorney telling the truth or is he leaving a job half done? Brette's Answer: Since you are not confident in your attorney's opinion, you should get a second opinion. Go see someone else and pay for an hour of their time to go over the case to date. There are many nuances involved in a case like this and you really need someone who can sit down, look at all the paperwork and ask you a lot of questions. It seems to me that a man who has already kidnapped his child once is a high risk and the court would be concerned about it happening again. I think supervised visitation might be in order. » Return to top Topic: Do I have any recourse against my lawyer after the divorce? Sharon's Question: My attorney didn't represent my interests at all during my divorce. He turned down a settlement offer "because it wasn't what we wanted" without presenting it to me. He charged me for reading numerous letters that I never saw. He advised me not to get excited or emotional in court because it was "all about the money" so neither I or my attorney objected to what was said about me or my part in our marriage. Consequently, the judge "awarded me a 10 year old vehicle, a portion of my attorney's fees and a small sum of money. My attorney took all of his fee from the money and mailed me a check for the remainder, without discussing it with me. Also, when I received my copy of the divorce decree, the terms had been changed. Can I get any of this changed? Finances are an issue, but so is the principal of what was done by my lawyer. Brette's Answer: You could talk to another attorney and inquire about an appeal. There's not really a lot of hope for it though, since an appeal doesn't examine questions of fact, only questions of law (whether the court decided correctly). You could also report your attorney to the state grievance committee, although I would say there probably isn't a lot of hope there either since it is going to be your word against his. To all the women reading this, let this be a lesson to you. If you don't agree with what your attorney is doing, make your objections know. Don't be pushed into a settlement you don't agree with. Once you go through with the divorce, you're stuck with it. If you don't like what your attorney is doing, get another lawyer. However, remember that no one gets everything they want in a divorce, and most of the time, the attorneys do the best they can. » Return to top What can I do if my lawyer finalized the divorce without my consent? Gayle's Question: My attorney filed for my divorce before a property division settlement was agreed upon between me and my ex. My lawyer finalized my divorce, but did so without consulting me about settlement agreements. Was this legal? Now it has been over two years and I have received no property settlement whatsoever. It seems my lawyer has lost interest and gives me no reasonable explanation. Can I undo my divorce and start over with settlement to be included? Brette's Answer: This sounds like malpractice to me, based on your description. Unfortunately, the answer is going to be finding another lawyer you can help you. Can my lawyer tell the judge that he disagrees with the settlement? Toni's Question: I retained an attorney for a divorce, but he kept charging me for everything and the cost kept going up. I am on a fixed budget and he knows that. I told him that my husband and I had worked out a settlement and we were both satisfied, but my lawyer wouldn't sign it. I fired him and asked for my file back and he said no. My husband and I set a court date with the Judgment that has been signed by both of us and I again asked for my file back and he said he was going to show up and tell the judge that he didn't' agree with the settlement. Can he do that? Brette's Answer: Often an attorney cannot be removed from the case without the court's permission, so that may be part of what is happening here. He's free to tell the court you are acting against his advice, but you are allowed to make your own decisions and do what you want. The court will make sure you know what you are doing and then likely allow you to make your own choice. » Return to top
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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