Chapter 3
The Players and Their Role in the Process
It's important to understand the facilitators of the divorce process, their roles, how they're compensated, and what a successful engagement looks like from their perspective.
The Attorney
The attorney is often the first call that's made after getting over the initial shock of the conversation. This is natural because a divorce is a legal matter, and in most cases an attorney is needed to navigate these waters. However, before making the call, it's important to have a general understanding of the attorney's role and motivation in the process so that you can then select the attorney that is the best fit for your case.
The attorney's role
An attorney who helps people through a divorce is practicing family law. Divorce is handled at the state level, and these attorneys are experts in the statutes known as dissolution of marriage. Susan Harrell, Professor of Legal Studies at the University of West Florida, advises that the attorney should be a facilitator for the client. It is his job to ensure that the client has enough information to make sound decisions, and he must advise the client as to the best course of action given the circumstances. Harrell further indicates that the attorney should make a best effort to settle the case without the courts. Numerous studies have shown that a settlement negotiated outside the courts is much more beneficial to both parties and should be the attorney's goal, if at all possible.
An attorney will make sure that your legal rights are protected while going through this highly emotional process. Each state has guidelines regarding the major issues in divorce, and an attorney will help you understand these issues and how they apply specifically to your situation. A good attorney will give you an idea of where you stand and will help keep your expectations aligned with reality. An attorney is also likely to know the personalities of the judges and their tendencies should things go to the courts.
One of the most important roles of an attorney is to ensure that the other party provides accurate disclosure during the discovery process. In most families, either the husband or the wife assumes the role of family Chief Financial Officer. Many times, particularly when there are or have been children, that role falls to the husband. In these cases the wife often has no idea of where the household stands financially, and when it comes to gathering this information during a divorce discovery, it is likely that she will have an incomplete picture of the marital net worth. This issue can be compounded by a spouse who is less than forthcoming in providing documentation, and in this situation an attorney becomes a crucial enforcer, ensuring that assets are not hidden or wasted during the process.
The attorney's compensation
It's important to understand how an attorney is paid because for good or bad, this could influence the process. In the simplest of uncontested cases where there are no minor children and you've worked out the division of any property on your own, you will probably be able to find an attorney to quote a flat fee for the process. This fee usually runs from $500 to $1,500 and does not include the filing fee with the court. In most cases, however, when you hire a divorce attorney, you will pay an hourly fee for his time on your case. This will always be the case in a contested divorce, and in a contested case it is essential that you retain an attorney. You will typically pay an upfront retainer in the neighborhood of $3,000 to $5,000, and your attorney will draw from this as services are rendered. It varies widely depending on where you live, but this draw can be anywhere from $150 to $1,000 an hour. When the retainer is depleted, you'll need to provide additional funds for your attorney to continue on your case. This fee structure, by nature, doesn't encourage a speedy resolution because the more the process is prolonged, the higher the attorney's fees. Now, I'm in no way implying that any party would intentionally drag things out. I'm just pointing out an inherent flaw in the process, one that is often picked up on by the party paying the bill, which can, in itself, lead to a dysfunctional proceeding.
An attorney can only represent one party in a divorce. If you and your spouse agree on all the factors and your divorce is uncontested, you can often find an attorney who will draft the documents for you. But in this case he will still be representing only one party, so it is usually recommended that the other party have his own attorney review the documents before they are filed.
A successful engagement
Ultimately for an attorney, a successful engagement should involve a settlement that is the most beneficial for his client. This is where it's important to have the right attorney for your particular circumstances. In many cases the first instinct is to go out and hire the toughest pit bull you can find. This is particularly true when there's been an infidelity and emotions are raw as in the hypothetical case of Nancy and Mark. What often happens in this instance is the partner on the receiving end of that summons feels threatened and will often go and hire his own pit bull. A battle often ensues and becomes one of egos, which can add tens of thousands of dollars (or more) in fees with no resolution.
I've also seen the flip side where a case dragged on for way too long because an attorney was not aggressive enough. Petitions went unanswered, and court orders were ignored until finally a more aggressive attorney was hired and the case was brought to resolution.
Other times, a case will bounce back and forth for months or longer until finally the attorney for one party comes to the realization that his client has no more money. He orders mediation for the few sticking points, and the case is settled.
It's important to meet regularly with your attorney, and if things don't seem to be moving as they should, it's necessary to get answers as to why. It is always in your best interest to reach a settlement in a reasonable amount of time. There should be a steady progression through the issues being negotiated, and you should know where you stand at all times. Again, if things don't seem to be moving along, find out what is holding them up. What is the trigger indicating the need for additional measures, and what is the action to be taken at this point? Settlement outside the courts is usually the best route, but if that's not possible, your attorney should advise you as to when your case needs to go before a judge and what you might expect as an outcome given your circumstances and the statutes in place.
The Mediator
Mediation is an informal, non-adversarial process in which a neutral and impartial third party works to encourage the participants and facilitate the process in a dispute. The goal of the mediator is to help identify the issues, explore alternative solutions, and guide the parties to resolution without actually prescribing what that resolution should be. It is a process that empowers the parties to work up their own outcome as opposed to having the courts do it for them. Many mediators are attorneys themselves who've taken up mediation either as a side gig or as a phased-in retirement. Mediators can come from virtually any background and career field. In the state of Florida after completing the prescribed training, they are certified by the Florida Supreme Court.
The mediator's role
A skilled mediator will let each party know that a successful resolution will be the result of both parties being able to be give and take. There will not be a winner and a loser in a successful mediation. Both parties will have conceded on some issues to move the process forward to a place acceptable to all involved. It is not the mediator's job to tell the parties what to do but rather to guide them to an outcome that all can live with.
Sometimes a mediator is hired instead of an attorney, particularly when the divorcing parties are amicable and the case is uncomplicated. Mediators are more often used along with attorneys as part of the process. Typically, mediators are brought in after represented clients have reached a sticking point. At this stage both parties, along with their attorneys, will meet for mediation. The process typically flows like this. Everyone initially meets in a large conference room, and the mediator will introduce himself. He will discuss the mediation process, possible outcomes, and his role in getting the parties to agreement. The parties will then separate into different rooms, and the mediator will shuttle back and forth working systematically from one issue to the next until there is a resolution. If a resolution cannot be agreed upon, an impasse is rendered. Impasse means the mediation has failed, and the parties now go back to their attorneys to either work through the issues not resolved or to take the case to the court to make the decision for them. Autumn Beck, a divorce attorney in Pensacola, Florida, is a big fan of mediation. Beck explains, "In cases with complicated financial or parenting issues, the mediator will often find some common ground quickly, and as soon as you get some common ground, it's amazing how fast you can settle a lot of issues."
The mediator's compensation
The compensation of the mediator is dependent on the nature of the engagement. If a mediator is hired for a simple, uncontested divorce, you should be able to pay a flat fee somewhere in the neighborhood...
