People who are contemplating a divorce ask how much they should involve a divorce attorney in their divorce process. The truth of the matter is the answer is not so straight forward. Here are three possibilities.
- Ongoing, continuous involvement
- Medium to light involvement
- No involvement
These choices are not set in stone either. By definition, divorce processes are quite fluid and need heavier or lighter involvement at different stages of the process. It is not unheard of to move from a medium to light involvement approach to a more continuous involvement approach or vice versa. It depends on a number of factors that can continuously change throughout the process such as:
- how clear you are about your legal rights
- the degree of uncertainty you have around your legal outcomes (not your financial outcomes as those need to be managed by a financial divorce manager)
- how effective your (or your attorney’s) communications are going with your spouse and other parties
- the strength of your ever-changing negotiating positions
- the amount of value you are receiving at each major milestone from your advisor
- your confidence level to close the process with the current process and professionals you have engaged in your process
- among other factors
To determine the right approach critically evaluate the legal issues listed below. Then come back to this thinking process and determine how much you need to involve an attorney in your process based on your current profile.
It is worthy to note this thinking process is critical to get right. Why? If you involve your attorney too early or too much you run the risk of incurring higher legal fees than you might expect. This could create unwanted tension between you and your attorney. You may not have allocated enough money to get through the rest of the process and will feel that financial burden.
If you begin to feel this tension with your attorney you may have placed yourself in a less than desirable position. Your attorney is the person who intimately understands your legal positions. This person may need to help you after your divorce is finalized if your spouse no longer complies with the terms and conditions of your divorce decree. Therefore choose your approach wisely as you wax and wane your attorney’s involvement before, during and after your divorce is finalized.
It is important to note the financial issues and psychological topics are beyond the scope of this article. If you are thinking about these issues you have to think of them in context to the right expert. We would suggest that you not think about these issues in context to your divorce attorney as she or he needs to remain focused on your legal issues. You want people who have the right skills with the right processes working on the right issues in your process. This way you will get the deepest solution for your situation.
Although the following list outlines different legal issues you may encounter, this list is not meant to be exhaustive. The items outlined below will get you thinking in the right direction. As you review the list you will:
- identify the number of legal issues you need to address
- gain a clearer understanding how to define what you need the attorney to do for you
- determine to what degree you need to involve an attorney in your process
Ultimately you will need to decide what is best for your situation. If you decide to engage a divorce attorney you may be able to use each topic outlined below as a way to scope the statement of work the attorney will perform on your behalf verses leaving everything open ended.
Here are some topics to evaluate. If you check off a topic make a note whether you should address the issue immediately or later on in the process. There are pros and cons to both approaches.
Within each bullet there are comments phrased as “Word to the wise” to provide some guidance when you may want to incorporate the issue into your process. The issue is ultimately yours to decide. Please know this article is not meant to be formal legal advice. If you have specific concerns you should consult your personal attorney who knows your situation best.
Protection orders – Do you perceive your spouse is physically abusive?
Many times abuse appears in the form of domestic violence. People get angry with each other and then communications can become violent. If there are signs of physical abuse in your relationship gain legal protection as soon as possible. You may need an attorney to file a restraining order or other protective measures to invoke your legal rights.
Word to the wise: If this is your situation, this should be one of your highest priorities. After this is established and you know you are well protected you can start to think about the other issues that may arise in your process.
Escrow accounts – Is your spouse redirecting monies to other accounts?
You may have a problem on your hands if your spouse has redirected the marital income towards a separate bank account and you can no longer gain access to those funds. Do you need to have monies directed towards a joint account, potentially through an escrow account?
Word to the wise: If the answer to the question above is Yes, then you should engage an attorney to help you with this matter. You will need money to pay advisors and live your life in a respectable way until your matters are resolved. Be sure to maintain clear records how any and all funds are used as you will likely be questioned at a future point in time. The way you utilize the funds may be used to establish your true financial needs.
Subpoenas – Is your spouse hiding something you can’t gain through an expert negotiator?
Attorneys use subpoenas in many ways. One way is to legally force people to provide information they would not provide otherwise.
Word to the wise: You may want to wait to engage an attorney around this issue until you know the type of information you need and how you will utilize that information in the process. Requesting information too early can create a defensive mechanism and inflame the entire process. It can also significantly impair your negotiating position.
Child custody – Do you question who your children will live with and when?
This is obviously a sticky issue and not always easily resolved. Naturally a parenting plan must enter the picture along with clear definitions around visiting rights. Most times both spouses want some form of custody. Rarely does one spouse want nothing to do with the children. Both pose challenges that need to be worked through to arrive at an acceptable arrangement.
Although this is a very important issue to get resolved, should you resolve it in isolation before your financial outcomes are clearly defined?
Word to the wise: If you can live with the way things are temporarily then it might be best to resolve your custody issues in context to your financial solution. Your custody issues should be an important component to your entire puzzle as you may unfortunately need to use your custody requests as potential ‘currency’ in your divorce negotiations.
Paternity rights – Did you have a child without being legally married?
Certain people have a child without ever getting legally married. One might assume the biological father in this context has automatic paternity rights. It might also be assumed the biological father has financial obligations to provide for the child too. Unless paternity rights are legally defined, which can occur by definition through a traditional marriage certificate, it is technically unclear who the legal father is and whether that father has any financial obligations toward the child.
If you are the mother or primary caretaker and need financial support from the biological father you may need to establish clear paternity rights. If you are the biological father you may not have your paternity rights clearly defined and need them to obtain custody.
Word to the wise: It is always best to get this issue resolved sooner than later. Your child will want you involved in her or his life. You may want to prioritize this issue early on in your process.
Military family law – Are you or your spouse involved in the military?
Families who have been in the military may have special military benefits or restrictions. Every government has special rules that need to be adhered to with care so you do not lose your legal rights.
Word to the wise: This area of the law is usually complex. You will want to understand these components before you go too far into your divorce process. This could influence the design of your financial settlement structure among other aspects too.
Power of attorney – Does someone have legal rights to make decisions on your behalf?
If someone is designated as your power of attorney which is not bound by time, then you may need to have this legal instrument revoked sooner than later. In order to have a power of attorney in place, you would have signed a form that transferred your legal rights to another person. Through a power of attorney, that person or institution can make decisions on your behalf which you may not want to have happen. That person could sell or otherwise transfer ownership of assets before your divorce is finalized leaving you with nothing. That person could also gain sensitive information about you that you need to keep quiet at least for now. Furthermore that person could contract debts in your name which you may want to prevent from happening.
Word to the wise: If you have granted a power of attorney to someone determine how broad the transfer of legal rights are in terms of scope. What type of power do they have over you? Also, how long can they enforce these legal rights over you? If you are concerned about this then you may need to get it revoked so you can control the types of decisions that the power of attorney restricts you from controlling during your divorce process.
Guardianship – Do you need a guardian for you or your children?
Guardianship is usually thought of in context to a child where the parents may lose certain parenting rights. Yet, the subject of guardianship also arises where someone has a medical challenge such as a disability or incapacitation while seeking a divorce.
Word to the wise: In these situations it is best to get these issues taken care of sooner than later so you and your children are well protected.
Healthcare proxy – Is your spouse the designated decision maker over your health issues?
If you authorized a healthcare proxy you would have signed over your rights to make healthcare decisions to another person. This would only be necessary if you became incapacitated and could no longer make or execute healthcare decisions on your own behalf.
Word to the wise: If that person is your spouse and you suspect you could be incapacitated during your divorce process it would be wise to prioritize this early on in you process and get this changed.
Change in legal name – Do you no longer want to maintain your married name?
This can become a sensitive issue when kids are involved. Yet you may want to change your name regardless.
Word to the wise: This may appear to be an important element in the process yet could likely be deferred until a later point in the process. Although this is relatively simple to do and if you want to simply check the box to get this over with then its wise to get it done.
Property lien – Do you need to place a lien on your spouse’s property to get paid?
If your name is not on the deed of a certain property and those illiquid properties are the only way you can gain access to monies you may want to place a lien on a property.
Word to the wise: Placing a lien on the property may be an important step along the process and should be prioritized when you suspect your spouse will sell the property or you will not gain access to those funds. Another situation is where you suspect another party may place a lien on the property and you may be placed in a less preferred position (referred to as a subordinated position) compared to the other lien holder. If your spouse is entering bankruptcy this could pose questions yet should be handled through a bankruptcy attorney not a divorce attorney.
Based on the number of checkmarks you made you will decide how much and where you should involve your attorney in your divorce process. You will end up at either ongoing involvement, medium to light involvement or no involvement.
If you find the areas of your situation do not require immediate involvement by an attorney then you might be wondering where to go next. You are likely thinking of the financial or psychological matters that arise. If your financial outcomes are in question you need to engage a financial architect who can clearly define your financial outcomes. This will reduce the uncertainty you may have in the process. As you proceed down this path someone who has the skills of a financial divorce manager will guide you and recommend, when and where appropriate, to involve a divorce attorney in the process.
If you need a divorce attorney be sure to utilize the attorney for her or his core skill set. Be clear what your attorney has mastered and work with your attorney on these issues. If you ask your attorney to work on other matters, you run the risk of not obtaining a deep solution to your current challenge. Furthermore, your attorney runs the risk of impairing his client relationship and violating her or his fiduciary duties to you.
It is important to note: people who find the need to engage a divorce attorney think through their decision process at a deeper level. They ask the following types of questions to best manage their overall costs, timeline and outcomes.
- How should I utilize a divorce attorney?
- How do I select the right attorney for my needs?
- Should I utilize a mediator or a divorce attorney?
- When should I bring an attorney into my process?
- What should I expect from my attorney?
- Among other questions
About the Author
Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.
For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.
If You Have a Question
If you have a question, feel free to contact me at lar[email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:
- unfold, analyze and repackage their financial life so they are well positioned after their divorce
- preserve the value of their business or marital estate
- continuously strive to provide a return on our services
- build balanced financial solutions grounded in evidence
- find ways to make our client, and at times both parties, money through the process
- design their divorce to work for them and their family’s life
- provide mental clarity to make decisions
- reduce the total process time from start to close
- minimize the stress and unpleasant memories that can last a lifetime
As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.
This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.