Hiring an Attorney to Go Through the Divorce or Custody Legal Process
You may be asking yourself whether you should hire an attorney for your divorce or custody case. Consulting with an attorney is important to protect your legal rights. You may believe that you don’t need any legal advice because you and your spouse agree on all of the issues. However, you should consult with an attorney prior to signing on the dotted line so that you are not giving up your current or future legal rights relating to financial issues or issues concerning your children. You should be aware of the complexities of the law regarding these issues prior to entering into an agreement.
Your lawyer will help you get the best terms for you when settling issues regarding child custody, financial support issues, property and debt division, and all other issues in your case. When you consult with your attorney, you will have the best chance of settling your case with terms in your best interest whether you are a stay-at-home mom, a CEO at a major company or anything in between.
To begin the divorce or custody process in Colorado, most people consult with an attorney to obtain a good understanding of the legal process. It is usually best to speak to a lawyer at the beginning of the case. That way (1) you can make informed choices throughout your case; (2) you have a better understanding of legal strategy so you can make intelligent decisions; and (3) your lawyer can explain the upcoming court proceedings.
There are many different ways that a lawyer can help you, including “unbundled” attorney services, “bundled” attorney services, and mediation attorney services. Some of the ways your attorney can help you are detailed in this article as follows:
“Unbundled” Attorney Services:
Some spouses decide to represent themselves in court and hire an attorney for “unbundled” legal services. If you hire an attorney for unbundled legal services that means you are hiring that attorney to perform only specified legal services that are agreed upon prior to the work being completed. For example, you can (1) have your lawyer draft legal documents and correspondence to your spouse or your spouse’s attorney; (2) ask questions about any aspect of your divorce or custody case and your lawyer will provide you with legal advice; (3) have your lawyer negotiate the final divorce or custody settlement with the other side; and/or (4) have your lawyer help you with any other agreed upon issues in your case (except for court appearances). If your lawyer is providing unbundled services, your lawyer will not sign court documents for you, file papers in court for you, or go to court hearings, trials, and conferences with you.
In many instances, unbundled legal services is a cost-effective method for hiring a lawyer because you can control how much work your attorney completes for you. Based on the amount of work you expect your lawyer to complete, the lawyer will generally request a retainer to cover the expected number of hours spent on your case multiplied by his or her hourly rate. The “unbundled” retainer request is generally between one-fourth to one-half of what the retainer would be for “bundled” legal services.
Many times, people who are getting divorced or going through a custody battle decide to start out the process with a lawyer for consultation only or “unbundled” legal services. If things become contentious with your spouse and you want an attorney of record to represent you in court, you and your attorney can change your agreement for representation so that your attorney can enter an appearance in your case. Most lawyers will require that a litigation fee agreement be signed if you want to change from “unbundled” legal services to “bundled” legal services.
“Bundled” Attorney Services:
Other people decide to proceed with “bundled” legal services, meaning they hire an attorney to handle all aspects of their divorce or custody case. If an attorney is hired in this capacity, your attorney will enter his or her appearance in your case as your “attorney of record” and will represent you in court (if needed). Even if you have an attorney “of record,” you may not need to go to court, because your attorney will attempt to settle your case for you with terms that you believe are in your best interest. Yet, you will have your attorney on board to go to court for you to fight for your legal rights if necessary.
Some people want an attorney “of record” listed with the court file because they do not feel comfortable representing themselves. Some examples include:
- There are complicated financial or emotional issues
- There is no agreement on parenting terms affecting the children
- There is a large marital estate
- There are “separate” property issues meaning you or your spouse have property that was acquired prior to the marriage or by gift or inheritance
- There is a contentious relationship between the spouses
- There are domestic violence or child abuse issues
- The legal process can become overwhelming and stressful
Many times, even though you might initially be confident representing yourself, if your spouse later hires an attorney of record, you might feel uncomfortable proceeding without an attorney to represent you in the same capacity.
Most times, when each spouse has hired an experienced family law attorney, the case settles. Since the attorneys in the case are familiar with the laws and the legal process, and they know how a judge is likely to rule in many situations, so an agreement can be worked out.
At any time during the case, for any reason, you can hire an attorney to enter into your case as your attorney of record. However, the attorney needs to be aware of any scheduled hearings, conferences, and status conferences scheduled with the court. If you decide to hire an attorney in the middle of your case, make sure to bring all of your documents from the court so that the attorney can review the notices concerning upcoming events in your case.
Your attorney will have substantially more work to do on your case if he or she is representing you as your attorney of record. Your attorney has to be ready to go to mediation with you (mediation is almost always required prior to the trial). Your lawyer also has to comply with deadlines associated with the trial date, such as witness disclosures, propounding discovery requests, exhibit exchanges, completing the trial management certificate, etc. Your lawyer additionally has to prepare you and your witnesses for trial and attend the trial with you.
There are many other tasks that your attorney of record will need to handle, some of which cannot even be anticipated when your lawyer gives you an estimate of what your case might cost. For example, your spouse could file a motion which requires a response and a hearing on some issue that was not even known when you hired your lawyer. Your attorney of record is required to handle all necessary legal steps in your case, including responding to issues that were not anticipated at the time your attorney entered his or her appearance. There could also be other post-trial issues that your lawyer has to deal with, for example, transferring retirement funds through a QDRO or transferring real property to you or your spouse.
Neutral Mediation Attorney Services:
For spouses who are amicable and confident that they can work out their settlement terms, another option is for both parties to go to an attorney that can help people the couple work through parenting and financial issues together without separate lawyers representing each spouse. With this option, the mediator attorney can help you and your spouse come to a settlement agreement.
The mediation attorney does not represent either party, and cannot provide legal advice to either party. Before signing any settlement agreement, you should take the agreement to an independent attorney of your own choosing and get independent legal advice concerning the proposed terms in the agreement that you want to sign. Most likely, a consultation is sufficient – your independent lawyer can counsel you for as little as one to two hours to go over the financial disclosure documents and the mediated agreement. Your independent lawyer will advise you on advantages and disadvantages of entering into the proposed agreement and let you know what is likely to happen in court. Your lawyer can help you confidently make your decision about settling. You still may want to settle on the mediated terms, or you may want to re-negotiate the terms. Either way, it is important for you to make an informed choice about settlement while taking your lawyer’s advice into consideration.
This option can be cost effective, if the mediation sessions are limited to one or two sessions and the case settles quickly. However, it could be cost prohibitive, for example, if there are several long mediation sessions and the settlement negotiations fall apart. In that case, the neutral mediation attorney cannot represent either party in the future so it is possible that you and your spouse will need to hire your own separate lawyers.
Attorneys can be helpful in a variety of different ways in your divorce or custody case. When you meet with your divorce attorney for the first time, he or she can explain which capacity is best suited for you, depending on the circumstances of your case. You can also discuss which type of representation is most appropriate for you financially and emotionally and ensure that your attorney is able to handle your case with your desired approach.
If you have any questions regarding mediation, please contact Gregg Greenstein.