Sunday, September 15, 2013

What Does it Take to Finish?

A couple of days ago, I got a call from a woman who was upset because her divorce was taking a long time to finish.  She had an attorney (not me), but was thinking about changing because the divorce wasn't finished up. She thought by now, it should be over.

I found out that she had filed, temporary orders had been made, they had completed discovery by responding to the requests of each party and both parties wanted the divorce to be over with.  I guess she thought everything would easily fall into place.

The missing ingredient seems to be "agreement".  Without that, it will take longer to finish.  

Here's what people in that situation should expect:
  • The attorneys will go to Court and prepare a scheduling order with deadlines and a final trial date.  Normally included in the schedule is mediation, a very effective way to settle the case.
  • Mediation can be set up soon since discovery has been finished.  If they were still missing some information, the attorneys would probably hold off setting the mediation until the information is produced.  It's hard to mediate and settle with incomplete information.
  • Reach agreement.  This is usually accomplished at mediation or in follow-up negotiations.  
Then as they say on TV, "but wait, there's more":
  • Paperwork.  There's a final decree or court order.  It's usually very detailed, so it's enforceable.  There may be a wage assignment form and some other forms the attorneys prepare that you don't have to deal with.  There may be a deed or deeds, a power of attorney to change a car title and some other miscellaneous papers to be signed.  Even though attorneys deal with these documents all the time, it is still time consuming to produce and proofread them.
  • Prove-up.  One or both parties, with attorneys, will appear at court to briefly prove-up the divorce.  It's a simple hearing, but the Judge needs to hear testimony in most cases to be able to sign the papers.
If you don't reach agreement in mediation, you will have to wait longer for resolution.  Your trial date is very often 9 months to a year after the date of the scheduling conference at Court. After a trial, you still have to do all the paperwork and then get it signed.

By the way, her divorce had only been on file for about 3 months when she called me.  I had to tell her that her divorce was still a very young one, that if they didn't agree, it would probably take another 6-12 months to get to trial.

If you're in a hurry,  you need to settle. 

Sunday, September 1, 2013

What's My Worst Possible Outcome?

In almost every attorney-client relationship, there needs to be more and better communication. Unfortunately (or maybe fortunately), attorneys can't read their clients' minds.  We can sometimes anticipate questions, but we can't always provide reassurance and information without being asked questions.

At some point in almost every case, a client will wonder what the worst outcome could be for their case.  Some people think if they know what the worst is, they can prepare for it, while hoping for a better result.  They don't want to be surprised.  While it seems like a reasonable question, it's really the wrong question.

What's the worst that could happen in a divorce?  You could lose all your assets, including things you inherited or had before the marriage; you could be saddled with all the debt; you could lose custody of the kids; you might have to pay exorbitant child support;  you might have little or no visitation; and you might have to pay everyone's attorney's fees.

What's the worst that could happen in a suit to modify a prior order?   Your request could be denied; you might end up with an order limiting your time with the children, paying exorbitant child support and owing money to the other party.  You can also be ordered to pay everyone's attorney's fees.

What's the worst that could happen in an enforcement case?  You could go to jail.  You could owe the other parent a lot of money.  Your access to the child could be restricted.  You could owe everyone's attorney's fees.

Do you see the trend here?  Asking for the worst outcomes will get you some very scary outcomes.

The better questions are something like: 
  • What is the realistic range of options for what can happen in my case? 
  • Given the facts of my case, what is the Judge likely to do?
  • What can I expect if I go to Court?
  •  How does a case like this usually work out in this Court?
  •  What do you think you can work out with the other attorney?
After you get information from your attorney, follow up with questions about what can be done to get you closer to your objectives.

Finally, keep up the conversation as you go along.  Don't make this a one-time request.  Outcomes may change as the facts change or are developed.  Keep in touch with your attorney so he/she can better help you.  Good Luck!