For most of us, our divorce attorney is the only attorney we will ever hire.  So where do you begin?  What questions do you ask?  How can you tell a good attorney from a bad one?  Below are some suggestions to help you in the process:

1)  Ask for recommendations.  Most of my clients come to me through my website.  That’s great, and I do recommend you do a web search and review the website of any attorney you’re considering.  But also ask friends, relatives, and colleagues for recommendations.  It’s especially helpful to ask people who’ve been through a divorce who they used, and what their impression was.  I like to ask attorneys who practice in a different area of the law – often they know each other through the local bar association, and can point you in the right direction.

That being said, take all recommendations with a healthy dose of perspective.  Everyone’s divorce costs more and takes longer than they want it to!  So keep that in mind.

2) Check with the State Bar.  In Texas, go to the State Bar of Texas website and you can look up any attorney by name or state bar i.d. number.  That will tell you whether the attorney is in good standing, and if any grievances have been filed against him or her.

3) Find a specialist.  You wouldn’t ask your dermatologist to deliver your baby;  don’t ask your tax attorney to handle your divorce.  Find a lawyer who handles family law cases on a regular basis.  There are wonderful attorneys who practice in more than one area – family, criminal, wills, etc.  But make sure they do frequently handle your type of case.  The law is complex and wide-ranging, and none of us can claim to be competent in all areas.

4)  Go local.  Most of us have a few counties we usually practice in, where we know the judges, the courthouse staff, and other attorneys.  While we’re licensed to practice statewide, we usually are more familiar with the local practices and rules in the courts we appear in most often.  Also, you may end up paying travel costs for an attorney to appear far away from his or her location.

5)  Read the fine print.  Most attorneys will have you sign a contract to formalize their representation of you.  I go over mine with the client every time, so they understand what they’re agreeing to.  Don’t just sign what’s put in front of you without reading and understanding it.

6) Understand the terms “retainer,” “fee deposit,” and “flat fee:”  People talk about “retainers” all the time when hiring family law attorneys, but the use of a true retainer in a divorce case is very rare.  A retainer is an amount of money paid to an attorney to assure that the attorney will be available when the client needs him.  It’s usually paid whether the attorney actually does any legal work for the client or not.  For that reason, it’s common only with large companies and very wealthy individuals.

Most family law attorneys ask for an amount of money up front, as a deposit for future fees and expenses.  In Texas, the attorney must put the money you give her in a trust account (the interest on those funds goes to legal aid). Then as she does work on your case, she tracks her time, and bills you for those hours.  She takes payment out of the trust account, and transfers it into another account. She can’t touch your money until she’s actually done the work.  And if she completes her work on your case and there is money left in your trust account, she must refund that money to you.

Some attorneys (understandably) find it simpler to just charge a flat fee for services – $2500 for a divorce, $500 for a name change, etc.  That way they don’t have to deal with the complications of trust account billing.  It’s a bit of a gamble on both sides – if your divorce ends up taking a lot of attorney time, you come out ahead;  if your matter turns out to be very simple and quick, the attorney comes out ahead.

7)  Don’t just go for the “cheapest” lawyer.  We all want our attorney to be “cost-effective,” but cost won’t make a difference if the attorney is not effective.  A more experienced attorney is going to charge a higher hourly rate, but will likely be more efficient in performing your work.

8) Match the attorney to the job.  If you have the simplest divorce in the world, you don’t need the best-known, most powerful litigator in the county.  On the other hand, if you have extensive assets or complicated issues, you don’t want to hire someone who’s just out of law school.

And think about the tone you want to set in your divorce – do you want to scorch the earth, or handle things as amicably as possible?  Different attorneys have very different styles, and none of us are right for every case.  If you want someone to nail your ex to the wall, ask around and find a lawyer with a reputation for being aggressive.  If you want to build a good co-parenting relationship with your ex, you probably want to look for someone with more experience in collaborative law, mediation, and other relationship-building techniques.

9) Staff or no staff?  In some larger law offices, most of your contact will be with an assistant, and not with the attorney.  This is not necessarily a bad thing – it saves you money, since the assistant’s hourly rate will be much lower than the attorney’s, and many legal assistants are wonderful.  A sole practitioner with no staff will likely answer the phone herself, but then again, when she’s in court or a mediation, you won’t be able to reach anyone.  I like to deal directly with my clients – that’s why I chose this area of the law – but it is hard to be the attorney, legal assistant, receptionist and courthouse runner all at once.  In this case, it’s a matter of preference, both the attorney’s and the client’s.

10)  Ask questions.  Here are some to get you started:

-How long have you been practicing law?

-How much do you charge for an initial consultation?

-How much do you usually ask for as a fee deposit?

-What is your hourly rate?

-Do you charge for travel time?

-When I call your office, will I speak to you or a staff member?

-Where do you usually practice?

-What percentage of your practice is family law?

-How would you describe your style?  Aggressive?  Cooperative?

-Do most of your cases settle or go to hearing?

-Do you routinely send out formal written discovery in every case?

-What increment of time do you use for billing?  (Tenths of an hour (6-minute) or quarter-hour (15-minute) increments are common.  The smaller the billing increment, the better for you.)

Good luck to you in your search for counsel!

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Every divorce is different, but every divorce in Texas must follow a basic process:

1)      Filing of a petition.  This is the document that starts the legal process of divorce.  The party who files the petition is called the “Petitioner.”  The other party is called the “Respondent.”  It doesn’t matter who files first.  Your property and parental rights remain the same, whether you’re the Petitioner or Respondent.  The petition must be on file for 60 days before the divorce can be final.

2)      Service of process on the Respondent.  The other party has to know that the petition has been filed, and the court has to know that they received a copy.  There are three ways to accomplish this:

  • Formal service of process.  A constable or private process server finds the Respondent, hands him a copy of the petition, then reports back to the court that he has done so.
  • Waiver of service.  The Petitioner or attorney delivers a copy of the petition to the Respondent, in person or by mail.  The Respondent signs a document called a “Waiver of Service of Process” in front of a notary, and returns the form to the Petitioner.  The Petitioner’s attorney files the document with the court.
  • Filing of an answer.  If the Respondent hires an attorney, the attorney will usually just file an answer with the court, indicating that they have received the petition and are “making an appearance” in the case.

3)      Issuance of standing order.  Most counties in north Texas have what are called “standing orders” that apply to all family law cases.  This order is attached to the petition and applies to both parties as soon as the case is filed.  Basically, the order requires everyone to act like grownups.  It prohibits hiding property, interfering with the children, verbal and physical abuse, and other bad behavior that people going through divorce tend to engage in.

4)      Temporary Orders.  Many divorce cases require what are called “temporary orders,” which are orders that apply while the divorce is pending.   Many attorneys include a request for temporary orders in the petition.  Usually, the courts are able to hold a hearing on temporary orders within a short time (two to three weeks) after the petition is filed.  These hearings are usually short (in Collin County, temporary orders hearings are limited to twenty minutes for each side), and cover issues such as where the children will live, who will stay in the home, and child support.

5)      Information-gathering.  The next step is to gather information.  This can be done informally, by both parties providing all the information requested by the other side, or formally, through a legal process called “discovery.”  Each party sends the other party lists of questions (called “interrogatories”) and requests to produce documents.  The attorneys may request a “deposition,” which is an opportunity to question the other party in person, under oath and with a court reporter present.  If children are involved and there is a dispute over possession or conservatorship, then the parties may have to pay for a “social study.”  An expert, usually a social worker or psychologist, will visit both homes, interview the adults and children, and provide a report to the attorneys and the judge.  If a family business is involved, the parties may have to hire a business evaluator to determine the value of the entity.  Tax, real estate, or financial professionals may need to be consulted to help determine the appropriate division of the property.  The information-gathering stage can last a long time, and is usually the cause of delay in completing a divorce.

6)      Resolution of Issues.  After all the necessary information is gathered, the parties will begin to decide how they want to handle the division of property and post-divorce parenting.  Usually, the parties agree on many issues, but still have some problems they can’t resolve.  There are several ways such differences are resolved in divorce cases:

  • Informal settlement discussions.  The attorneys or the parties may write letters, exchange e-mails, talk on the phone, or meet in person to resolve the issues.  This is how the vast majority of divorce settlements are reached. 
  • Mediation.  The parties and their attorneys sit down with a neutral third party who helps them identify the points of agreement and disagreement and come to a resolution.  The mediator does not make decisions; the parties retain control of the process and any agreement.   Ideally, a mediation results in a “mediated settlement agreement” which resolves all issues in the divorce.
  • Judicial hearing.  If the parties and their attorneys are not able to reach an agreement on one or more issues, then either party may request a hearing or trial in front of the judge (or in some cases, a jury).  This is a formal process where evidence is presented, witnesses testify under oath, and the judge or jury makes a decision which is binding on both parties.

7)      Preparation of a Final Decree.  Most divorce cases end when the parties have finally agreed on all issues, or when the judge has ruled on the issues they could not resolve.  These agreements are written up in a document called a “decree.”  It contains many provisions that are required by statute, as well as any unique terms the parties have agreed to.  Final decrees can be very long, as they detail the parties’ rights and duties regarding the children, and the disposition of all property.

8)      Prove up.  If the Decree is agreed to without a trial, then one party still needs to appear in front of the judge to “prove up” the divorce.  A prove-up is essentially a very short trial, with one witness who confirms that the Decree contains the agreement of the parties.  The court grants the divorce, signs the decree (which then becomes the order of the court), and the divorce is final.

9)      Post-divorce matters.  After the decree is signed, there are usually some other matters to be handled.  If there is child support ordered, an account is set up with the Child Support Division of the Office of the Attorney General (OAG).  If a retirement account, such as a 401K, was divided, the parties must obtain a “Qualified Domestic Relations Order” (QDRO) to send to the plan administrator.  If there was a transfer of real estate, the deed must be filed with the county clerk.

There are many other twists and turns a divorce can take.  Sometimes restraining orders are necessary to prevent destruction of property or family violence.  Sometimes the parties may have more than one hearing to determine issues involving the children or property. In a Collaborative Divorce, the information-gathering and issue-resolution steps look very different.  But these are the basic legal steps required to get divorced in Texas.

I’m very excited to be blogging from my new site at WordPress.  I hope it will be easier for readers to find and use.  In the past few months I’ve opened a new office, hired an assistant, have a new telephone number and e-mail address, set up a Facebook page (www.facebook.com/mckinneyfamilylaw), and opened a Twitter account (@melaniekmorgan). All this change has me overwhelmed at times, but I’m also looking forward to providing new and better services to my clients.

My blog will focus on information that is helpful to people going through divorce.  I’ll share information on collaborative divorce, mediated divorce, and other alternatives to traditional, litigated divorce.  I’ll also talk about mediation of all sorts of conflicts, from family law to business, from personal injury to employment.  We’re just getting geared up to provide simple wills to clients, so I’ll talk about that process as well.

I’m going to start by re-posting some of the entries from my earlier blog, which contain basic, helpful information about the divorce process.  I hope you find them helpful.

Thanks for reading!

Melanie