• Giugi Carminati

How to Pick a Family Lawyer. Really.

If you are reading this, either you or someone you care about is looking for a divorce lawyer. It's a tough place to be. Divorce is a tough decision, in the best of circumstances. It can downright terrifying in the worst. So here are things you should keep in mind when picking a lawyer.


10. Don't pick an "aggressive" lawyer, pick a smart one.

When you are in the throes of a custody dispute, a divorce, a legal separation, or proceedings following any of the above, you are in conflict mode. You may feel overrun, outgunned, and terrified of losing. I get that. But fear and anger are terrible advisers. You will want to find an "aggressive" lawyer or, in the vernacular, a "pitbull" lawyer. The problem with that is that aggressive lawyers are not focused on preserving your funds or the relationships within your family. While you may be leaving your spouse, partner, or co-parent behind, if there are children, you are not leaving the relationship behind. You will have to rebuild it and, for better or for worse, continue to work with that person in a co-parenting setting. In addition, conflict takes time and time is, in a very concrete way, money. An aggressive lawyer, if that is all they bring to the table, will cost a fortune.

While love may not be forever, divorce is. You will have to live in the wasteland of take-no-prisoners litigation. Believe me, you don't want to. More importantly, your kids deserve better.

Rather than an aggressive lawyer, what you should look for is the following. Look for a lawyer that is firm, knowledgeable, and levelheaded. You want someone who gets result, of course, that moves cases along, and who is responsive. You will also want to find someone who is firm, not only because they will tell you when you're pushing for things the law won't allow but who will also refuse to bend when the other side is doing it too. Knowledge of the law is critical to find that balance.


9. "This is an easy case."

Many clients have said that to me. None of them--and I mean none of them--were correct. My rule of thumb is that the divorce or custody dispute will be as simple (or as complicated) as the relationship. The contract created by marriage binds income, assets, and children. Untangling these things is not simple. Dismantling and re-arranging a family is not simple. Working through and with your habitual patterns of arguments and reconciliation is not simple. Do not think your divorce will be simple. In fact, your divorce will be as complicated as your marriage was. The same is true for custody disputes; they will be as complicated as the relationship that brought forth the children.


Be ready. Be calm. Be patient.


8. The law is unfair.

The problem with laws is not so much how they are written but, far more often, how they are implemented and interpreted.

Probably not. The law changes from state to state, so you should consult a lawyer about what the law is like in your state. But, here are some general truths.


First, when it comes to custody and divorce, the law has shifted from historical unfairness to equitable concepts: fair & just division of assets, joint decision making (when possible), joint custody, etc. English family law gave custody of the children to the father after a divorce because the father is able to provide for the child. Until the 19th century, the women had few individual rights and obligations, most being derived through their fathers or husbands. That changed in the 19th century when courts began using the “tender age” doctrine, based on research, providing that children of a certain age should be with their mothers. This has since been entirely replaced by the “best interests of the child” doctrine, in place across the United States. This overwhelmingly favors joint custody and joint decisionmaking.


Second, marital assets have to be divided in a “fair and equitable” manner. The law is written to be as fair as possible. Third, maintenance and child support exist, which is meant to help the lower earning spouse and the spouse who has greater care of the children. If you think the outcomes are unfair, it is probably because the marriage itself was unfair. But as I tell my clients, I can divorce you but I can’t unmarry you.


7. "I'm going to lose everything."

No, but you’re not going to get things you did not have. If the marriage is overleveraged, you will likely leave at lease somewhat in debt. There are two terms you need to get familiar with – community property and separate property. Community property is any property acquired during the marriage (think paychecks, the home you bought while married, the cars you bought while married, the furniture you bought while married). Separate property is the property and the money you brought TO the marriage from before the marriage. One little caveat: gifts and inheritance are separate property, regardless of when you get it. You will get a “fair” or “equitable” distribution of marital assets, which includes debts and liabilities. It’s not a perfect system but it is not patently unfair.


6. "It's [his/her/their] fault!"

Maybe, but that doesn’t matter. Thankfully, all states have some no-fault option – this means that all state have a way to avoid the blame game and just get divorced. If you really want a divorce based on fault, consult and attorney and figure out if that really makes sense. The reality, though is that "no fault" is far cheaper, a lot less traumatic (especially for children), and faster.


5. "But I did all the work."


You were married – you were working for both of you. The long and short of it is when you are working, as a married person, every dollar you bring in is for the other person too. Whether the other person was voluntarily or involuntarily unemployed, and whether the other person was taking care of children, parents, family members, pets, or nobody at all, they don’t get “docked” for not working. That’s the spouses made with each other. So whatever benefit the working spouse created for the marriage during the marriage, it benefits everyone. Again – you can get divorced but you can’t get unmarried.


4. "Ugh, alimony is forever."


Wrong. That’s a misogynistic trope rooted in gold digger mythology. Calculation of alimony or maintenance varies from state to state. A number of states only award maintenance if the marriage lasted more than 10 years. In other states, like Colorado, maintenance can be awarded for shorter marriages, but no shorter than three years, and the maintenance is based on a worksheet. Link to the worksheet in the description. The factors for calculation of maintenance are: length of marriage, the parties’ relative income, incapacity, the number of children, any special needs among children, and, in some states, fault for the marriage.


3. "If I bought it, it's mine."

I hear this a lot, unfortunately very often with victims of domestic abuse. This myth is the result of several competing misconceptions.


In the case of domestic abuse, one way to create control is for the abuser to put the house, the cars, the bank accounts and any other assets in their name and then claim they “own them.” That’s false. Assets bought during the marriage with marital funds are marital assets – owned 50/50 by both spouses, regardless of whose name is on them. That’s marriage, for better or for worse. So if the car is in one spouse's name, and it was bought during the marriage with marital funds, it is a marital asset.


2. "I need a cheap lawyer."

Einstein said, “Everything should be made as simple as possible, but no simpler.” Well, your divorce should be as cheap as possible, but no cheaper.


This is the really hard part about choosing a lawyer. They should charge you reasonably and do the work that is appropriate and necessary to represent you – but they should not be charging you for things your divorce does not need. Similarly, when you ask for things from your divorce attorney, you are increasing the final bill. So you have to determine what is worth fighting about and what is not. Finally, sometimes clients tell me, “Well I found a lawyer who can do it for cheaper,” and all I have to answer is “good luck with that.” And a few times, I heard back from them, asking me to help them fix what their lawyer messed up.


1. "I don't need a lawyer."

You do. You really do. You really, really do. For a number of reasons.


First, divorce is stressful enough. You are re-organizing your life. You are grieving the end of your marriage. You are managing your children and your family. You may be finding a new job or new housing. You have a lot on your plate.


Second, Google is not a replacement for a law degree. And even if you get the right answer, what will take you hours will take your lawyer 30 minutes. That’s what you pay them for.


Third, love is not always forever, but divorce is. Divorce sets up the rest of your financial future, your children’s schedule, who makes decisions about what, who pays for gym camp and soccer. Who gets the kids on Christmas and Christmas Eve. What happens with the kids when there is a school day, and so on.


I hear you, at this point, telling me: lawyers are expensive, what if I can't afford one? I hear you. So...

If you can’t afford a lawyer, you should at least have one for the important moments: mediation, hearings, and reviewing your final documents. These are important turning points and with adequate time to prepare, a lawyer can really make a difference.

Finally, and I know you won't believe me: you will get through this and you will be happy again. I don't guarantee it, because a good lawyer doesn't do that, but I promise, person to person.

© 2020 by Giugi Carminati