There has been a lot of discussion lately in the mediation and collaborative law community about the recently released film Divorce Corp. The general consensus seems to be that while the film raises some important concerns, it unfairly relies on divorce horror stories to paint family lawyers as opportunistic money-chasers and family law judges as corrupt tyrants. I will be writing more about the film once I have had a chance to see it. For now, I just want to focus on one specific issue implicated in the film that should be of concern to anybody going through a divorce: who to hire as a lawyer.
Do you even need a divorce lawyer?
Strictly speaking, you do not need a lawyer's or any other professional's help to get divorced. You can get divorced yourself, or you can choose to enlist the help of a mediator, an attorney (who may or may not be collaboratively trained), a financial advisor, a child psychologist, etc. If you choose mediation and also hire an attorney, you can choose to have the attorney attend mediation sessions with you or only offer "sideline" advice between sessions. It all depends on your particular means and circumstances. Generally speaking, it is a good idea to at least have a sideline attorney at your disposition, to make sure you have a qualified professional who can advise you independently throughout the divorce process.
What role will your divorce lawyer play?
The most important question to ask of any lawyer is, "Can you provide the kind of legal assistance that I need?" Most people do not need an aggressive attorney who will drag the family through court and attempt to wring every last penny out of the marital estate, or go to the mat over child custody when you need to preserve your ability to communicate with the other parent. Instead, most people need an attorney who will inform them of their rights, help them understand the consequences of different options available to them, participate in negotiations as needed, and review any agreements prior to signing. For couples in mediation, the role of a "sideline" attorney can be relatively minimal.
You should choose a lawyer who understands the role you want them to play and is comfortable in that role. For example, some lawyers are not willing to be left out of mediation sessions, so if that is your preference, you should not hire one of those attorneys. Most experienced divorce mediators will be able to provide a list of mediation-friendly attorneys in your area.
What does "zealous advocacy" mean to your divorce lawyer?
Lawyers have a duty of zealous advocacy to their clients. However, the term "zealous advocacy" can be taken to mean many different things. Unfortunately, too many lawyers interpret it as a duty to use any means necessary to get the best financial outcomes for their clients. In a commercial setting where the clients will not have a long-term business relationship, that form of zealous advocacy might be appropriate, but it is completely inappropriate for the vast majority of family law cases.
When it comes to family issues, intangible concerns can be just as important as financial concerns, and often are far more important. While the financial outcome is certainly important, an excessive focus on gaining a financial advantage can set the stage for an adversarial process that undervalues – or even destroys – those intangible interests. What is the value of an extra $50 per week in child support, if the parents are no longer willing to talk with each other about their children? Particularly when children are involved, "zealous advocacy" must take on a completely different meaning, where the lawyers are also advocating for a functional family structure post-divorce. In short, be especially cautious of any lawyer who emphasizes their "zealous advocacy" or uses adversarial language in their marketing materials.
What kind of advice is your divorce lawyer giving?
Once you have hired an attorney, you should not feel locked in. I am not suggesting that you should change attorneys at the first sign of disagreement – to the contrary, one reason to hire a divorce attorney is that he or she has the benefit of experience handling many divorces, and therefore has insights into the laws and processes that might not be immediately apparent to you. However, you should be concerned if your lawyer is giving advice that threatens your ability to reach an agreement fairly and respectfully.
Consider, for example, a situation recounted to me just this morning by John Fiske, a renowned mediator here in Massachusetts. The spouses had chosen to bring their respective attorneys to a mediation session, presumably to provide independent legal advice and input as needed. However, when John asked the wife, "What do you want?" the lawyer interjected, "I have instructed my client not to answer that question." John's hands were tied – there is no way to mediate a divorce if the spouses are not willing to openly discuss their interests. By advising the wife to play her cards close to her chest, her attorney had effectively ruined any chance of the couple reaching a mediated agreement. If the wife was serious about keeping her divorce out of court, she would have to either act against advice of counsel or find a new attorney.
Be careful of well-meaning advice from friends and family.
As you navigate your way through your divorce, you will inevitably receive a great deal of well-meaning advice from friends and family. Many of these people have experienced divorce themselves, either personally or as a bystander, and will want to share their learned wisdom with you. For example, they might want to connect you with a lawyer who got a "great result" for a relative. Or they might encourage you to hire an aggressive attorney who will "stand up and fight" for you. Be careful about this advice. By all means, accept it and thank its providers for caring. But never, ever forget that this is your life and your divorce. Every situation is different, and what works for somebody else might be disastrous for you. Hire an attorney who will help you get the kind of divorce you want, not the kind of divorce somebody else wanted.
Where should you start looking for a Massachusetts divorce lawyer?
If you are already in mediation, you should ask your mediator for a list of mediation-friendly attorneys. Make sure your spouse gets this list, too! If you are not already in mediation, or are considering another form of divorce such as Collaborative Law, you could do much worse than consulting the directory of collaboratively trained professionals maintained by the Massachusetts Collaborative Law Council. Just by virtue of having taken the Collaborative Law training, these lawyers have demonstrated a commitment to helping clients reach agreements outside of the traditional adversarial system. If they are not available to help you, they might be able to give you information about where else to look.
It's your choice!
Remember, you get to decide who you hire as an attorney. Nobody can force that choice on you, and you are not required to hire the first attorney who expresses a willingness to work with you. At this critical juncture in your life, your choice of attorney can make a tremendous difference, not only in how your divorce proceeds, but also in what your life looks like post-divorce. Hopefully, this article will have helped you in making that decision.