Working With Your Lawyer

Working 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? Keep reading to find out the answers to these questions and more.

Obtaining Representation:

Retainer Fees and Agreements

Legal Fees

Communicating With Lawyers

Delays and Dragging the Divorce Out

Lawyer Withdrawing From Case

Proceeding without a Lawyer

Lawyer Conduct and Responsibility

Obtaining Representation:

Do I need an attorney to get a divorce?

Millie's Question: Do I need an attorney for a divorce? We have a house, cars, and a child together.

Brette's Answer: If you can afford an attorney, I recommend using one. In some situations, when funds are low or the entire thing is agreed upon it can be ok to do the divorce yourself - but you must use your state forms and follow the procedure carefully. However it is always important to consult with an attorney to make sure you know your rights. You might also want to consider divorce mediation, where you and your husband work with a mediator to negotiate the terms of your divorce.

Should we use the same attorney?

Karolynn: 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 the 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.

How do I find a good lawyer to handle my divorce?

Sandy's Question: I have 3 children and my husband is emotionally and mentally cruel to me. He drinks daily and takes Zoloft and is very angry. My daughter broke her leg at his parent's house, but he brought her home instead of going to the hospital. My husband has been arrested but charges were dropped. Do I have grounds for sole custody? And where do I get a good lawyer.

Brette's Answer: If you have ever used a lawyer for a real estate closing or other matter, call that office and ask for a recommendation for a matrimonial lawyer. Ask friends and family who they have used. If all else fails, your bar association probably has a referral program. I suggest you document all the incidents that have happened. It sounds like you have a case for sole custody.

Can he use his brother to represent him?

Cindy's Question: My husband is using his brother as the lawyer to file for divorce. Is this legal, or is this a conflict of interest?

Brette's Answer: No, he can hire any attorney he wants who does not represent an adverse interest in the case. If the brother has ever represented you, then it's a problem.

How can I find a lawyer that practices in another state?

Karen's Question: Where I can find an attorney in my home state that practices in New Jersey?

Brette's Answer: Call your local or state bar association and ask who is admitted to practice in NJ.

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!

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.

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.

What can I do if my lawyer was injured and can't continue?

Kathy's Question: My attorney suffered a traumatic brain injury, and my court date was to be 2 months from now. It could be years before he is better. I have been waiting 4 years already. What can I do?

Brette's Answer: If your attorney works at a firm, someone else will pick up the case. If not, you need to find a new attorney. Either way there are going to be delays and there isn't much you can do about it.

Is this a normal line of questioning for a prospective client?

Jessica's Question: I am in the process of finding a divorce attorney. I had an initial consultation yesterday with a firm highly recommended to me by a friend. During the consultation the attorney interrupted my questions and said: "You're a hot girl. What attracted you to your husband? Was he a really good looking guy or something?" It totally caught me off guard since I don't see what the relevance is to my case. Is this a normal line of questioning for a prospective client? What is the purpose of these types of questions?

Brette's Answer: That would not be a normal question and verges on inappropriate. And clearly it made you uncomfortable so if I were you, I would go elsewhere.


Am I violating my retainer agreement if I get a lawyer in another state?

Sushma's Question: I have signed a retainer agreement with my attorney. Now I cannot afford an attorney and have also I moved to another state. If I get a lawyer in my new state, is it violating the retainer agreement with my previous attorney? What do I do to get a temporary child support from my husband?

Brette's Answer: You can tell the first attorney you want what is left of your retainer back and hire the new one. It's always your prerogative to fire your attorney. To get temporary child support, you need to file (or have your new attorney file) a petition for child support and temporary child support.

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: You can ask for the unused portion of your retainer back, unless it is a non-refundable retainer. 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.

Does a retainer for hourly and filing fees include serving the petition?

Tina's Question: If you pay the lawyer the retainer for hourly and filing fees, can I assume he is going to handle getting my spouse served with papers on my behalf?

Brette's Answer: You should have signed a retainer agreement which specifies the matter the lawyer is handling and what if any additional fees (such as court fees or fees for service) you are responsible for. Serving the other party the papers is normally part of the responsibility of taking on the case

How can my retainer be used up before the petition was served?

Jessica's Question: I paid $5000 dollars for a retainer fee. Circumstances changed dramatically and I stopped the divorce in the beginning stages. The "papers" had not even been served to my husband. I called to ask for the remaining money and his secretary said "Ma'am... we did EVERYTHING up to the point of having the papers served; you have nothing left." How could this cost me $5000?

Brette's Answer: Tell them you want a line by line accounting. There is certainly a lot of work that could have been done up to this point, but you have the right to ask exactly how your money was spent. Most likely he will show billing against all of it, but if not, you are entitled to the unused portion back. If you don't believe them, you can file a grievance with the bar association.

Is my retainer agreement still good if I had to delay my divorce?

Marlene's Question: I paid a $3,000 retainer a year and a half 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.

What if my lawyer won't refund the balance of my retainer?

Cherie's Question: How long can a lawyer hold your retainer once you've dismissed him? I reconciled with my husband a year and a half ago and my lawyer hasn't refunded my balance yet. I've asked him several times and each time he has a different excuse. His secretary is even puzzled. What are my options?

Brette's Answer: Call your state bar grievance committee and file a complaint. That will get your money back quickly.

Topic: My Attorney dropped me after taking my retainer

Lori's Question: I am a 38-year-old disabled woman. My husband left me and the money is gradually stopping. I paid an attorney for the initial 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.

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.

Lawyer Fees

Can I ask that my husband pay my attorney fees?

Betty's Question: My husband filed for divorce this past July. I retained an attorney, who used all my money, plus another $900. Nothing has been resolved. I cannot afford his fee any longer, but from the beginning asked my attorney to send my husband the bill. Can and should my husband pay for my attorney fees? He makes much more money than I do.

Brette's Answer: The court has to order him to pay your bills. Your attorney should make a motion asking for that.

Why do I have to pay my lawyer if he's responsible for legal fees?

Michelle's Question: The divorce decree clearly says that if either party in in breach of any part of this agreement and the other part has to take things to court that the party in violation is responsible for the legal fees. I have waited on taking him to court because when I spoke to my lawyer, she said I would still have to pay and I simply do not have the money. If the decree in fact states this, can't I enforce that he pay for all legal costs since he is the reason I have to take him to court anyway?

Brette's Answer: Perhaps what your lawyer means is you would still have to pay your attorney's fee until he is ordered to pay for them. So if you want to file, your attorney needs to be paid by you. You will likely be later reimbursed if the court orders him to pay the fees.

Can my lawyer fine him $125/day until he submits financial papers?

Kris' Question: My husband fired his lawyer and wants to go pro se. His lawyer did not inform him about discovery, and now my lawyer wants to fine him $125.00 a day until he submits this. Is this legal? He does not understand the process due to his negligent lawyer.

Brette's Answer: It sounds like you don't want your attorney to do this, so tell him not to. It's your case and you get to decide.

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.

Can my lawyer sue me for not paying the final bill?

Christina's Question: I had to pay my divorce lawyer $1300 up front for services. I also paid an additional $125 for mediation and an additional $100 to file contempt papers on my ex. My lawyer withdrew from my case and I wrote an e-mail asking for at the minimum a partial refund because he chose to withdraw. He has now decided to send me a final detailed bill and is expecting payment or he will file a law suit on me. Can he do this, and if I cannot pay will I end up in Jail?

Brette's Answer: When you hired your attorney you agreed to pay not only the retainer, but also future incurred charges. You can dispute the bill if you would like by contacting your state bar attorney grievance committee. You won't go to jail for failing to pay, but he can definitely sue you for it. The attorney grievance committee may be able to help you in getting the bill reduced. Good luck.

Topic: What if I can't afford to pay my lawyer in full?

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: You need to read your retainer agreement. It should spell out what your payment responsibilities are. 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.

What if I can't afford my lawyer for my continuing custody battle?

Nicole's Question: I am in the middle of a horrible custody battle. The father makes a lot of money and is draining me. At our court hearing, I was allowed to move and given primary custody of our two year old son with special needs. I filed a petition to modify the visitation schedule based on information from a specialist who is stating that the current schedule is detrimental to my son. My ex is fighting this and my attorney wants another $10,000 retainer to proceed at the Superior court (I have already paid $80,000). I cannot pay this huge amount up front. Should I find a new attorney? She also says that if I do not have representation, I will lose my son.

Brette's Answer: I am so sorry to hear about your situation. I think it is appalling when these situations happen and parents spend tens of thousands of dollars on attorneys. I think that it wouldn't hurt for you to go talk to someone else for a second opinion, but I have to say that when you're this far into a heated battle with so much attorney work already done, it just doesn't make sense to try to represent yourself. You're going to be at a disadvantage. Here are some suggestions. First ask your attorney about a payment plan. You've already paid a lot up front - I would hope he would agree to a reasonable payment plan. Secondly, ask your attorney about a motion for attorney's fees - asking that your ex have to pick up part or all of your fees. If he makes so much more, it seems reasonable to me. I really do think you need representation though at this point and I hope that your case is resolved quickly.

What if my lawyer threatened to sue me if I don't pay more?

Debbie's Question: My attorney had agreed to accept monthly payments. An amount was never set for the payments, but I have been paying $100 a month. My attorney has threatened to sue me if I don't pay more per month. What is my recourse here?

Brette's Answer: When you signed the retainer agreement you became legally responsible for the bill and it likely said nothing about monthly payments. You can try to get your current agreement in writing or agree to pay just a little more and get that in writing.

Will my lawyer's fees be deducted from the settlement escrow?

Zoya's Question: My divorce settlement is supposed to go to my lawyer's escrow. Will he be able to assess his fees before I get the whole amount? Or will I get the whole amount and then I will have to pay him?

Brette's Answer: Usually he takes his fee out of the funds before giving you the balance, if you agree to do it that way. » Return to top

Communicating & Working with Your Lawyer

Can my lawyer talk with my husband if he's not represented?

Belinda's Question: My lawyer is talking to my husband, who does not have a lawyer. Apparently my lawyer spoke to my husband about 3 weeks ago and is drawing up the agreement for me to look over. My lawyer never told me he spoke to my husband until recently. Is this right? Can he do that because my husband has no attorney?

Brette's Answer: When one party is not represented by counsel, the other party's attorney can talk with him or her and is encouraged to do so to reach a settlement. You should be kept up to date about this though. It is definitely awkward to talk to your ex and find out from him he's been talking to your lawyer. Ask your lawyer to keep you in the loop from now on.

Can I ask his lawyer what's going on if mine won't respond?

Kay's Question: My husband and I had our final hearing 3 months ago and signed a written agreement finalizing everything, but his lawyer was supposed to type everything up for a final copy. His lawyer still has not drawn anything up because she is "busy" according to my lawyer. To make a bad situation worse, my own lawyer won't return my calls. Can I contact his attorney and ask what's going on?

Brette's Answer: This is something I often hear about. His attorney is not permitted to speak directly to you, so calling there will not help. Instead, you have to get tough with your own attorney. Send a typed letter specifying when the final hearing was, how long it has been, how many phone messages you've left and that you need to have this resolved as soon as possible. Ask that you receive a call back within 48 hours of receipt of the letter. Send it return receipt requested so you have proof of delivery and keep a copy of the letter. Good luck.

What if his attorney makes rude comments to me?

Lynn's Question: My husband's female attorney is very rude to me. I have only met her once. His attorney always has responded with innuendos and it hurts me so bad. I don't know the process and when the time comes to go to court I am so fearful. What can I say or do? Ignoring her comments would just be impossible after the years of his abuse. I'm positive she will play on this continuously.

Brette's Answer: You should not be having direct contact with your husband's attorney if you have an attorney yourself. Tell your attorney about this and request that your attorney make certain she does not address you directly. It is not correct for her to do so anyhow.

What can I do if my lawyer isn't advising me about my visitation case?

Sandra's Question: My husband is continually trying to get around court orders for child visitation and notification of the itinerary for visitation. He tells our daughter the judge is on my side, he has severed relations with her primary care doctor and therapist he agreed to. He has refused the IEP even after giving consent and is now being held in contempt. He undermines my authority and accuses me of being wrong to give consequences. This is all documented, but nothing happens even when I tell my attorney. My attorney does not advise on any issues! I feel so hopeless.

Brette's Answer: If your attorney is not responsive or helpful, think about finding another one - perhaps one who has experience in situations like this. I suggest you document everything. If there isn't a law guardian/guardian ad litem on your case, ask for one. You really need an attorney who is willing to actively work with you on this case. Seeing a therapist yourself might also be helpful because this is a very difficult situation and you need support.

Is it normal not to hear from your lawyer for two months?

Onita's Question: I haven't heard from my lawyer in two months. Is that normal in a divorce case?

Brette's Answer: Yes, if there is nothing happening that he or she needs to talk to you about. If you're wondering, you can call for a status update.

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 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.

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 an Order of Default to my lawyer, and I still have not heard anything. I am very upset with him. What can I do?

Brette: You'll 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 if the court if threatening to dismiss my case?

Kristy's Question: I filed for a divorce over a year and a half ago, but it was delayed because I filed bankruptcy. The bankruptcy was finalized a few months ago, and now it seems like the divorce is not going anywhere. I have been paying my divorce lawyer every month, but I do not know how much the bill is. When I ask him how much I own him, he tells me that he has been too busy to figure it out. What should I do if the court is asking to dismiss our divorce because nothing is being done?

Brette's Answer: Call your lawyer and explain that if the court dismisses the case, it will be malpractice on his part. Ask that he move forward. Tell him you want a complete accounting of his time and fees within two weeks. Follow up with a letter saying the same things. Then report him to the bar association if he doesn't provide an accounting. If the case is dismissed, you can also report him to the bar association.

Dragging the Divorce Out

Should I file a complaint if my divorce is taking too long?

Aris' Question: How long does an uncontested divorce take? My lawyer promised me it will be settled in 3 months, but it has already been more than a year. Should I file a complaint against him?

Brette's Answer: You should ask why it is taking so long. Did your ex consent? Were there service issues? Is the court backlogged? There are lots of reasons a case could take longer. You should not assume it is your attorney's fault.

What could happen if I tell the judge I wasn't satisfied with my legal representation?

June's Question: I've been going through divorce proceedings for almost six years. I don't feel that I've been represented well by my attorney but can't afford to change at this point. We have a trial date finally set after years of delays and lack of paperwork. Someone mentioned that I may be asked by the judge at trial if I've been satisfied with my legal representation. What are the ramifications of saying "no"?

Brette's Answer: In court you must always be honest. I do think saying no would cause the judge to pause the proceedings to find out what is going on.

What if his lawyer keeps delaying proceedings by not showing up?

Sheila's Question: What can you do if the soon to be ex spouse's attorney continues to delay proceedings by not showing up. My husband says they will drag the divorce on as long as possible. Does the judge have a responsibility to force them to comply with proceedings or proceed without the spouse and attorney?

Brette's Answer: You ask the court to step in and direct him that there can be no further delays without being in contempt of court.

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.

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. 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.

What if he keeps firing lawyers to delay the divorce?

Patricia's Question: My husband has now fired 3 lawyers and will hire his 4th. Every time we get close to finish, bingo! This has been over a 2 year period. This is there anything I or my lawyer can do?

Brette's Answer: Your attorney should make a motion to disallow the change in counsel because it is unfairly postponing the proceedings. There is clearly a pattern here. The attorney is not officially discharged from the case until the judge gives permission.

Do I need to get a new lawyer to push my case along?

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 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.

How do I get my legal aid lawyer to finish the case?

Gaynor's Question: I met with a Legal Aid lawyer last year and she agreed to take my divorce case. We agreed to meet again so that I could read the divorce papers and sign them, but she never set that date and I've heard nothing back. My husband has now handed me divorce papers, and is pushing me to sign these papers quickly. How do I get her to finish what she started? What do I do when I am calling her weekly and she just ignores my calls?

Brette's Answer: There are several things I would suggest. First of all, if you call, leave a detailed message. Don't just ask her to call, tell her what is happening and explain the urgency of the situation. Another option is to just set up an appointment with her so you can talk in person. Talk to the receptionist to schedule it. If none of this gets you anywhere, ask to talk to her supervisor. Explain your situation. Legal aid attorneys are incredibly overworked and unless there is something urgent happening, your case won't get attention. It sounds as though you have been patient and now it is time to get this thing moving. » Return to top

Lawyer Withdrawing From Case:

Can my attorney drop me if I've been paying on time?

Amy's Question: Can my divorce lawyer quit less than a month before trial? I have a signed payment agreement with my attorney which I have stuck to. I just received an email from her paralegal saying if I didn't come up with over $6000 in the next two weeks that they'd have to drop my case. I've been making the payments on time, can she really quit?

Brette's Answer: Yes she can. In most jurisdictions however the attorney must be given permission by the judge to withdraw. If you are on the cusp of the trial, the judge might decide not to grant that permission because it will delay things.

You're saying the attorney's office is asking for more money than your retainer agreement says? I would suggest you ask for some detailed billing and point out to them what the retainer agreement says. You can also point this out to the judge if the attorney seeks to withdraw. If the attorney is violating the retainer agreement, you can file a grievance with your state bar.

What can I do if my attorney won't to represent me anymore?

Michelle's Question: I am a year plus into a nasty divorce. I have four kids under ten years old and stayed home to raise the children. My husband makes over 400,000 a year and I make no money as I gave up my career. I filed for divorce with a lawyer who decided recently to "drop" my case because I have no more money to pay the lawyer bill. Now he has a lawyer and mine left me because they fear non-payment. How am I supposed to fend for myself when I have nothing.....HELP!

Brette's Answer: If your attorney does not wish to represent you, you need to find new counsel. And this time you want someone who will be aggressive in seeking child support and spousal support. You should also be asking for attorney's fees to be paid by your husband as well. Get on the phone and make some calls to get some referrals - call the bar association and get some names. Set up free consultations. Bring all of your paperwork with you when you go. Be clear about what you want and that you want this to move forward quickly. Good luck.

What can I do if my lawyer dropped me?

Robin's Question: My divorce hearing is in 3 weeks. My free attorney bailed on me, and other attorneys won't take my case because it is too close to the court date. I had to ask for a continuance in June because I didn't have all the paper work then, but now I don't have an attorney. What can I do?

Brette's Answer: If you had an attorney through legal aid or a volunteer program, they should be able to replace your attorney with another. Call the program and ask. Call the bar association and ask if there are other programs you should consult. Check to see if there is a pro bono volunteer lawyers program in your area which might accept clients with a slightly higher income than legal aid. If all that fails, you might be able to find an attorney who would allow you to set up a payment plan or will take collateral. You might also get a loan from friends or family. If not, then you'll have to represent yourself. Judges understand when this happens and will give you the opportunity to present evidence and question witnesses if necessary. Check and see if your state has a pro se (representing yourself) guide available on the state court web site or at the clerk's office at the courthouse.

Is a court appearance needed if my lawyer withdraws from my case?

Jeanette's Question: My attorney is withdrawing from my case, which if fine with me, however it seems it has to go before the Judge. Do I need to go?

Brette's Answer: You may not need to appear. You should call the court and make sure though to be safe.

Would a judge grant a withdrawal this close to the court hearing?

Kim's Question: I have a trial date set in October for my divorce. My attorney has just served me with notice of withdrawal papers. Can she withdraw from the case with the trial date so close? Is it possible the judge will not grant her the withdrawal due to the trial being so close? I am worried that another attorney will not take my case; it's been in the process for almost two years. Can I represent myself at this point?

Brette's Answer: Yes, she can withdraw. But your attorney may not be able to be removed from the case without the judge's permission. However she may be able to send a letter or make a motion to be removed without a court appearance. October is a few months away though, so it would likely be allowed. You can represent yourself, but it may not be a good idea depending on how complicated the case is and if your spouse has an attorney. If you want a new attorney, he or she could always get a postponement if the dates do not work.

Can my lawyer refuse to release my file after quitting?

B's Question: My lawyer quit and the judge agreed to it. The case is not solved yet and I am cleaning up the mess by myself. The lawyer does not want to release the file so I can properly address the issues in this divorce. Is the lawyer required to give me the file with the information that I have already paid for?

Brette's Answer: Yes. The attorney has to release the file to you. If you haven't paid though, he may be able to hold on to it. You can obtain all the documents in the case from the court clerk. Good luck.

The documents for why my lawyer quit are sealed.

Vicki's Question: Why would a divorce attorney withdraw from the case and seal the document that states 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

Proceeding without a Lawyer

Is she better off representing herself or using a lawyer?

Sandra's Question: Our daughter is involved in a divorce. To complicate things, her husband is the mayor. Should an attorney not outline what he will do for the retainer fee? She has paid $3,000 and is not closer to an end. Would she will be better off to represent herself and go before a judge?

Brette's Answer: In general she will be better off to use an attorney. If she is unclear as to what the attorney is going to do, she should ask for a meeting or phone call.

Will my husband's relationship with the court clerk have any impact on our case?

Ferry's Question: I am in a process of divorcing my husband. I just found out that he has fallen in love with one of the court clerks and he admitted that he did that to have her assist him with the case. Will the relationship have any impact with the case? If so what can I do?

Brette's Answer: My best advice is to get a lawyer and have him or her handle it. A court clerk makes no decisions about the case and technically a judge should not be influenced, but it's certainly questionable. An attorney could be on the alert to make sure everything is processed and filed properly.

Can I set a trial date to get the final decree without a lawyer?

Z's Question: Can I set a trial to get the final decree on my divorce without lawyer? We got temporary orders and the judge assigned him being responsible to make all payments on a house and credit cards (which he didn't do). I cannot afford a lawyer anymore. Can I ask the county clerk to set a trial without lawyer and present my case on my own, so I can take my husband to court and resolve all the issues and get a final decree? How can I do it?

Brette's Answer: Yes, you always have the right to represent yourself. It is called appearing "pro se." You probably need court approval to fire your existing attorney. The court clerk may be able to help you in terms what forms to use and there may be more information on your state court web site. Check also to see if you can find a book about divorce procedures in your state. Sourcebooks publishes this for many states.

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? And how can I get my money back, at least most of it?

Brette's Answer: Fire her. The court has to give permission. You can file a motion requesting that you be able to dismiss her. Concerning the money, you will have to pay for the work that has been done to this point.

Should I represent myself after I fired my lawyer?

Juana's Question: I fired my lawyer a week ago after 2 years and $40,000.00 out the window. He has misrepresented me, and the only thing that has been accomplished is the discovery process and the judge ordering all the property to be appraised. I have to be in court next month. Can I withdraw from this, or possibly go to court by myself? Also, can I ask the judge to stop the divorce?

Brette's Answer: You can represent yourself, but in a case this complicated I would not recommend it. If you filed the divorce, you can withdraw it. However your spouse can always file for a divorce on his own.

Lawyer Conduct & Responsibilities

Can my lawyer reveal what is discussed to my in-laws?

Tiffany's Question: We've only been married 9 months and he has recently moved out. He and I agreed that if we separated, I would stay in the apartment his parents own, and they have forced him to abide by a separation agreement. Now his parents have offered to pay for my divorce lawyer, but want invoices on everything my lawyer and I discuss. How do I protect my interest in this matter?

Brette's Answer: You need to go talk to an attorney. Discussions between an attorney and client are confidential. It would be a conflict of interest for an attorney to send information about your discussions to the parents of your husband.

Isn't it my lawyer's responsibility to arrange visitation?

Lisa's Question: I have been appointed an attorney through legal aid for my divorce. She is telling me that I need to text my husband in regards to seeing my children even though I have explained to her that he does not respond to my messages. Is it not her job to arrange these visits?

Brette's Answer: No it isn't her job. Her job is to handle the divorce. It is the parents' jobs to work with each other and try to make visitation work. Legal aid attorneys have to prioritize their time unfortunately.

Is it legal for her to use the lawyer she works for to do the papers?

Crystal's Question: My aunt has temporary custody of my son which I agreed to. She won't let me see him or talk to him on the phone and also she had the lawyer she works for draw up the papers. Is it legal for her to use the lawyer she works for to do the papers?

Brette's Answer: Yes, it would not be a conflict of interest for the lawyer she works for to represent her. If that lawyer is representing you, and you and your aunt are in conflict, there is a problem.

Should my lawyer ask me to do my own papers for alimony?

Janet's Question: I have paid my retainer fee for an attorney. Now I have been told I need to do my own write up on spousal maintenance. I need to make sure I can make a good case for myself. It's very frustrating to stand up to the attorney and the husband.

Brette's Answer: If you have retained an attorney and want him to do the paperwork, he should. If he will not, get your retainer back and find someone else. If you're paying, you should be getting legal advice and assistance.

Topic: What if my lawyer isn't doing anything?

Mary's Question: My husband cheated on me and he then filed for a divorce. This case has been going on since almost a year and a half. I keep asking my attorney to give his attorney a 10 day response time, and he does not. The past legal secretary even gave him my personal papers that my attorney requested. Do I need a new attorney or just light fire under his butt?

Brette's Answer: I don't understand what the delay is. I think you need to find out where exactly in the proceedings the case is. Most states have timelines that cases must follow - to have a case outstanding with no action for that long is really unusual. I think you should find out what exactly is going on and ask your attorney to give you a firm timeline for a resolution for this case. You deserve to be updated on your status. 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.

Should I file a complaint if my lawyer is late for court and doesn't tend to matters in a timely manner?

G's Question: I am in the middle of my divorce and I am having difficulty communicating with my divorce attorney. She has become argumentative with me, wasting fees on ridiculous issues. For example, she became upset when the behavior specialist I hired emailed her a letter with his findings, saying I should not have given her email out without her permission. She said I was being unilateral, naïve and unwilling to work with her. She also has been late to court, ignores emails and calls, and is not timely at tending to issues needed, like determining the amount of temporary supports with the other party. Since there is a child involved, I need representation. I don't have the money to hire another attorney at this point. Can I file a complaint for her conduct?

Brette's Answer: Doing something like that is only going to cause a bigger breakdown between you. It sounds like there have been some miscommunication. I would suggest you let her know what your priorities are right now, but realize she understands the process better than you do. Being late for court is so common because attorneys are often appearing on several matters on the same day and even the same time. That is just how the system works. It does not hurt your case. It is also very common for attorneys to be late returning calls and emails (which does not excuse it). I suggest you schedule a time to meet with her to clear up the misunderstandings and create a plan for how she will move forward with your case.

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.

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 nor 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 his entire 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 known. 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.

What if my lawyer didn't remove untrue facts from the final papers?

Kim's Question: I have received my final divorce papers from the court. In the Findings of Fact there were 2 items that were supposed to be removed. They did not happen, but my attorney left them in the final papers that were filed with the court. My ex-husband and I are extremely upset about this and he is looking to sue either me or my attorney for this. What can be done to rectify this?

Brette's Answer: Call your attorney. Be explicit that this was his mistake and you expect him to fix it without charge or you will contact the grievance committee.

Can my lawyer suggest mediation to his lawyer without asking me?

Jolene's Question: My attorney approached my ex-husband's attorney and told him if he wanted to get things moving then they needed to take me to court ordered mediation. I never asked for this and don't have the money. Is what my attorney did illegal?

Brette's Answer: It's not illegal but it may be unethical for your attorney to suggest something that is against your own interests. However, mediation is always less expensive than pursuing your case in court. I would encourage you to explore it as an option.

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. 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 who 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 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 of Working with Your Lawyer

Brette Sember - Legal Expert


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