Rosen Law Firm

Collaborative - The No-Court Divorce

6/24/2007 8:44:57 PM

Collaborative Divorce - A No-Court, Solutions-Based Approach

Collaborative Divorce is a new way for a divorcing couple to work as a team with trained professionals to resolve disputes respectfully, without going to court.

In a Collaborative Divorce, each spouse has the support, protection and guidance of his or her own lawyer. Often, other professionals such as child specialists, financial specialists and divorce coaches will be brought in to advise on matters in their areas of expertise. At Rosen Law Firm, we provide our clients with an experienced team of divorce experts.

Collaborative Divorce is not a dispute resolution option in the same sense as mediation or arbitration. Rather, collaborative divorce is a set of voluntary ground rules entered into by the professionals hired by you and your spouse. While the details vary from collaborative practice to collaborative practice, the central idea is that the following inviolable core elements are set out in a contractual commitment among all the parties:

negotiate a mutually acceptable settlement without using court to decide any issues for the clients
withdrawal of the professionals if either client goes to court
engage in open communication and information sharing, and
create shared solutions that take into account the highest priorities of both clients.

If you are one of those folks that says "we're only going to hire lawyers if we can't work it out and it gets really ugly" then Collaborative divorce is for you. This process allows you all the benefits of getting legal advice without the negative possibilities of involving lawyers in your personal life. Collaborative Divorce lawyers help you make good decisions about financial issues. For example, they advise you about the hidden pitfalls of the tax code and the intricate rules imposed by the U.S. Department of Labor and Internal Revenue Service governing retirement plans. They make sure you don't make document drafting mistakes that cost both parties in ways they didn't expect. Collaborative Divorce lawyers make sure you understand the law, your rights, your obligations and the legal effect of your decisions. Collaborative Divorce gives you all the benefits of good legal representation without any of the negative factors.

Both your lawyer and your spouse's lawyer must be trained in collaborative divorce law for the process to work. Take a look at our directory of recommended collaborative divorce lawyers that have been approved consistent with our quality analysis and screening criteria. Use that list to have a conversation with your spouse and agree to each meet with a lawyer from the list. There are all kinds of lawyers on the list and you should be able to find someone with the knowledge, experience, personal characteristics and personality you are seeking.

Collaborative lawyers are trained and skilled in collaborative law, thus creating an open environment that encourages the peaceful resolution of issues. It's important, however, for you to realize that you are entrusting your soon-to-be former spouse to be honest in the negotiations. While the collaborative process sets the tone for full and honest disclosure; attorneys have limited capacity to ensure your spouse's honesty.

Like mediation and arbitration, collaborative law attempts to maintain a civil relationship throughout the negotiations process as well as after an agreement is reached. If either you or your spouse becomes stuck on a particular issue, a mediator may be consulted to help with the collaborative process. If the mediator does not help you to come to a conclusion or you decide not to attempt mediation, you both hire new counsel and then deal with the unresolved issues in either arbitration or litigation.

Thanks to alternative dispute resolution options, when negotiations fail, you and your spouse no longer are forced to go to court. Although some people still choose to fight their differences out in court, knowledge of these options give you other opportunities to try to settle your case without the financial and emotional burdens that generally come with litigation. Couples can now reach lasting solutions that benefit both parties and their children.

Three steps to a successful collaborative divorce:

1. Meet with a collaborative divorce attorney. In the Triangle (Raleigh, Cary, Durham and Chapel Hill) or Charlotte areas call Rosen Law Firm at 919-787-6668 or 704-307-4600, respectively. For referrals outside of the Triangle, go to our collaborative attorney locator.

2. Refer your spouse to one of our recommended Triangle area Collaborative Divorce Lawyers. Tell your spouse to review the list and ask them to find someone they feel is qualified. Generally, it is better to leave the choice to your spouse rather than providing a specific name. Any of the attorneys listed here will provide excellent advice and service. For a collaborative attorney outside of the Triangle, go to our collaborative attorney locator.

3. Begin the collaborative process with the help of your attorneys. There will be no mystery or secret strategy discussions. The process is transparent and both spouses will be completely involved and understand what's happening each step of the way.

The Recommended North Carolina Collaborative Divorce Attorneys are highly respected attorneys who practice independently of one another, yet are well known to each other as practitioners of skill and integrity, and who can be trusted to honor their promises to negotiate in good faith and with full disclosure. These attorneys are recommended because they have been thoroughly reviewed and evaluated and determined to maintain the highest standards with respect to their commitment to the collaborative process of dispute resolution.

The Big Picture on Divorce in North Carolina

5/30/2007 10:45:40 AM

The first thing you need is solid understanding of how divorce law works in North Carolina. This article describes the basic substance of separation and marital dissolution law in North Carolina. With this information, you can better grasp the overall outline of the separation and divorce process in North Carolina. You will then be able to make more informed decisions about how you yourself should proceed, once you or your spouse decide that you should no longer live together. Without this "big picture," you could stumble blindly through the process, never quite able to recognize whether your expectations for the ultimate bargain are achievable, or at what price.

The section is not, however, intended as a complete reference source that substitutes for the analysis of an experienced practitioner of family law. Each case can involve one, some, or all of the issues discussed in this section. At the same time, factual variations in various couples' lives make the principles reviewed below of only general applicability. Divorces can, and do, look as different as the people who are divorcing. Given the countless differences among marriages, this section, and indeed this entire website, cannot replace the advice of a skilled attorney concerning your own family. Such advice is most valuable at the stage when you are planning a separation, so that you can avoid action or inaction that will be more difficult to undo or correct later on. Legal advice remains useful, of course, throughout the process of resolving the various issues discussed in this website. But it should not be legal advice that you seek without already having gained a solid grounding in the law of separation and divorce. The "Big Picture" is broken out into each of the major issues. Just follow the links below to find out more.

The Big Picture:
- child custody
- child support
- alimony
- division of property
- absolute divorce

Alienation of Affection and Criminal Conversation

2/12/2007 9:48:57 AM

An outsider's interference with marriage can cost the outsider big bucks in North Carolina

Fairly high-dollar awards in such cases have existed here for a number of years, a fact not generally known. As long ago as 1926, for instance, a jury in MaconCounty rendered a verdict in the amount of $12,000 against the lover of plaintiff’s wife. A 1931 jury in Forsyth County held against plaintiff wife’s father-in-law for $38,000. A Rowan County jury awarded $30,000 against a husband’s girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25,000 in compensatory damages and another $25,000 in punitive damages.

Moving into the 1990’s, North Carolina juries were even more generous. A 1990 Forsyth County jury award of $300,000 in punitive damages for alienation was sustained on appeal, even though the court struck the compensatory award for $200,000. In 1997 alone, a jury handed down $1.2 million against a female paramour in Forsyth County and awarding another jilted wife $1 million in Alamance County and a deceived husband $243,000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife’s lover at less than $3,000 in compensatory damages but the judge still awarded $40,000 in punitive damages on the criminal conversation claim.

Even in this decade, the trend of generosity has continued. In August of 2000, a Burke County judge awarded a devastated wife $86,250 for alienation of affection and $15,000 for criminal conversation, totaling $101,250. In May of 2001, in Richmond County, the jury answered the issues of alienation of affection and criminal conversation in favor of the scorned husband and awarded him compensatory damages of $50,000 plus punitive damages of $50,000. Another distraught husband, in Mecklenburg County, received an award of $1.4 million in May, 2001 comprised of $910,000 in compensatory damages and $500,000 in punitive damages.The jury found the doctor who had had an affair with this man’s wife liable for both alienation of affection and criminal conversation. After an appeal the original award of compensatory damages was reversed, the punitive damages award, however, was upheld. In 2007, a Cook County judge ordered a man to pay $4802 to a husband who was grieving the loss of his wife after an affair.

Since our Supreme Court refused to abolish these causes of action in 1984 and since our legislature has shown no strong interest in abolishing these causes of action, sizeable damage awards remain a real possibility in North Carolina. More than 200 alienation actions are filed in an average year.

Conduct after date of separation

The date of separation is an important date in alienation of affection and criminal conversation cases. Our courts have decided that conduct that occurs before the date of separation is relevant to these types of actions. This is because a claim of alienation of affection must prove that, among other things, the defendant’s malicious conduct contributed to or caused the loss of affection in the marriage. The parties to the marriage must still be together in order to prove this claim. It is important to note, however, that conduct which occurs after the date of separation may also be considered by a judge, if that conduct corroborates the conduct that occurred before the date of separation. In criminal conversation actions, by contrast, post-separation conduct is even more important. Conduct which occurs after the date of separation can be considered by a court to not only corroborate behavior that occurred before the date of separation, but is enough on its own to maintain an action for criminal conversation.

North Carolina is in the minority

The existence of continuing cases of this sort in North Carolina appears to surprise lawyers and residents in many other states because we are now in a very small minority of jurisdictions -- including Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah -- which still recognize both alienation of affection and criminal conversation. Forty three states and the District of Columbia have abolished the cause of action for alienation of affection. The states vary widely in the way they deal with this issue: in some states, only one of the two causes of action continues to exist, and thus proof of the claim and/or damages have been significantly curtailed in recent years. None of these reforms has altered the stance favoring such claims in this State.

Criminal Conversation

Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff’s spouse. Criminal conversation is something like a “strict liability tort” because the only things the plaintiff has to prove are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff’s spouse. It is not a defense that: the defendant did not know the other person was married, that the person consented to the sex, that the plaintiff was separated from his or her spouse, that the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff “consented” to the illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.

Alienation of Affection

An action for alienation of affection, on the other hand, does not require proof of extramarital sex. Despite this difference, an alienation claim tends to be more difficult to establish because it is comprised of more elements and there are some additional defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim -- but not to a claim for criminal conversation -- where it can be shown that defendant did not know that the object of his or her affections was in fact married. As with a criminal conversation action, it is not a defense that the non-innocent spouse consented to defendant’s conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant’s conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

Criticism of these laws

Critics of such laws call them obsolete methods for legislating morality (despite the fact that most criminal laws could be said to legislate morality). Critics also say the laws do not fulfill their purpose of protecting marital relationships, inequitably punish only one of two guilty parties, and serve as an excuse for blackmail or forced settlements. The critics add that such suits can also be misused by embittered spouses seeking vengeance against a third party interferer and that injured spouses cannot possibly be compensated for a lost marriage. On the other hand, defenders point to the virtual non-existence of criminal prosecutions for adultery in current American culture, a need to uphold the sanctity of the marriage vows through some kind of formal legal sanction for violation of marital promises, and the potential deterrence of rampant extramarital affairs by means of the threat of monetary damage suits. Defenders also point out that adultery has a very long history of illegality; and that it is therefore appropriate for the civil laws of criminal conversation and alienation of affections to perpetuate Western culture’s longstanding disapproval, by law and by custom, of extramarital affairs.

Whether one thinks it is a good or a bad situation for North Carolina to continue to recognize such claims by spouses claiming injury to their marriages may largely depend, then, on one’s views of the need in the 1990s for protection of the marital relationship through civil litigation against the non-spouse wrongdoer and for monetary remedies for the alleged harms caused to that relationship. Indeed, some commentators have mentioned that high jury verdicts and the renewed popular interest in lawsuits for alienation of affections and criminal conversation may signal a growing societal disaffection with overly permissive sexual standards and a desire for stricter enforcement of family values. Pro-family writers believe it important that deceived spouses have litigation-oriented opportunities for vindication and that society retain this acknowledgment, however marginalized at present, of the supremacy of the institution of marriage against unwarranted intrusion. Ultimately, of course, these are all subjective and philosophical viewpoints likely to vary considerably from person to person.

5 Things to Do Before You Even Think About Getting a Divorce

These are the five things you must do before you act any thoughts you have about divorce. It's important to be certain that you have done the things you need to do to feel good about your decisions. Here are the top five things to do.

1. Talk to a Marriage Counselor or other professional who may be able to help you save your marriage.

Even if you don't think there's hope for the marriage, "divorce counseling" can help you discover what went wrong, how to cope, and how to pick up the pieces and go on. Don't wait for your spouse to participate. If you don't know how to find a qualified counselor, our firm will be glad to recommend one or you can check out the directory of professionals at stayhappilymarried.com. Your employment, social or religious contacts might also provide leads.

2. Talk to an attorney before you do anything.

Even if you don't end up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information as you can before you even discuss divorce with your spouse. There's a lot to know about divorce in North Carolina...our laws are complex and even the simplest situation can be very confusing to families already in distress. Actions you take now may very well affect the outcome of your divorce (see #3) and you need to understand your options ahead of time...not some time down the road when it may be too late to alter the outcome. Click here to find attorneys who are well versed in the intricacies of North Carolina divorce law.

3. Do not move out of the marital home without talking to an attorney first.

Leaving the house without a good reason may cause you to pay alimony or may result in your inability to collect alimony. If you leave the house, you may also be unable to return until after a court divides the property. This process will take more than a year. The best advice is to stay in the house until after you talk with an attorney unless your spouse is violent. If your spouse is violent, you must take all steps necessary to protect yourself and your children.

4. If you have been involved in any extramarital affairs, talk to a lawyer before you discuss this with your spouse or anyone else.

In this case, honesty may not be the best policy. In addition to the fact that adultery is illegal in the state of North Carolina, admission of an affair can have other dire consequences. If your spouse is a candidate for alimony, any illicit sexual behavior on your part (during the marriage...which includes the time you are separated) could end up costing you thousands in additional alimony payments. Although an alimony claimant is no longer required to prove the other spouse is at fault in order to be entitled to postseparation support or alimony, the new alimony statute still retains the concept of marital fault and still permits a judge to consider evidence of fault in fixing the amount of alimony to be awarded, if any. Marital fault in North Carolina is enumerated in the new statute as follows:

1. Illicit sexual behavior (meaning "acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engage in by a spouse with someone other than the other spouse").

5. Take concrete steps to safeguard your assets before you and your spouse begin discussing divorce.

One of these steps is to take possession of certain assets during separation, especially those assets you wish to be using, such as furniture and vehicles, and those assets that might be liquidated by your spouse, including precious gems and stones, other collectibles, cash, and bearer bonds.

Another self-protective step is to file what is known as a Lis Pendens in the Deeds Office of any county where you and/or your spouse own real property. The lis pendens puts third parties on notice of your claim to have an interest in the real estate against which the lis pendens is docketed. The lis pendens is basically a notice of pending litigation that may affect real property. A properly recorded and served lis pendens clouds the title to the property, preventing an effective sale of the property behind your back. The rules regarding a lis pendens contain very specific requirements, all of which are spelled out in section 1-116 and the following sections of the North Carolina General Statutes.

A third possible step to protect the assets of your marriage is to get an injunction restraining your spouse from transferring or otherwise disposing of any property covered by the restraining order. Your attorney can also use an injunction to get your separate property returned to you, where your separate property is in the possession of your spouse and the spouse refuses to give it to you. The equitable distribution statute also provides a means for you to obtain an interim distribution of marital property, pending a final resolution of the property matter. Such an interim allocation could, for instance, give you much needed funds on which to live.

Other protective measures you might consider in your divorce planning include: (1) protecting your own credit rating by freezing or closing joint cards and by blocking your spouse's access to other joint credit such as a home equity loan; (2) closing joint bank accounts and opening accounts in your own, individual name; (3) changing the name of the responsible party on utility and other bills; and (4) spending where possible your spouse's separate property first, marital property next, and your own separate property last.

While this list will help you get started on the right track, it is by no means a complete list of all the things you need to do and know if you are considering a divorce. For more information about the rights and duties of separating and divorcing husbands and wives under North Carolina law, visit ncdivorce.com. You'll find a complete law library, downloadable divorce forms, a legal fee calculator, a child support calculator, lists of professionals who can help you and stories from people just like you who have survived divorce.

Choosing an Attorney

Choose from the following links to jump to different sections of the article:

What kind of a person should you hire as your attorney?
Working for your interests
Why you shouldn't procrastinate
Understanding how an attorney can help
Simplifying the process of finding the right lawyer
Gathering information
State Bar referral list
Courthouse personnel
Training
Before you make a final decision . . .
The first meeting
Trust your first impression
Policies and fees

There's no other way to say it: Using a lawyer can make a genuine difference in how you feel during the process of separation and divorce. A lawyer who truly listens to you and responds appropriately can greatly reduce your fears, uncertainty and confusion. A lawyer who doesn't listen to you, or who botches your case, will make you feel a whole lot worse. Maybe that's why lawyers have gotten such a bad rap. But not all lawyers are going to make you feel worse. Most lawyers are going to make you feel better, if only because you can get confirmation of your predictions about why things have happened the way they have and where things are going.

What kind of a person should you hire as your attorney?

It follows from this that you need to select as your attorney-advisor a person with the human qualities you most admire. Because the lawyer with whom you consult, and whom you might decide to retain, can also profoundly affect the course of your life and your children's lives, now and for some time to come, you want to make your selection very, very carefully. You don't, in other words, necessarily want to hire the first attorney you meet with.

But let's not jump the gun here. How do you decide whether to even consult an attorney? When and how do you make the decision to retain legal counsel for your separation and divorce? Then how do you go about picking the right attorney for you? How do you find out about the legal fees and how much you will be responsible to pay for legal representation?

These are all important questions. But you don't have to engage an attorney full-time to get the positive sense of enhanced well-being that can flow from an affiliation with an attorney suited to your personal needs. Provided your marriage was relatively short, you have no children and property issues are uncomplicated, having one or two meetings with a lawyer who understands your concerns and who can suggest ways for you to attain your goals might give you the tools you need to represent yourself. Those tools can empower you despite all the turmoil people experience during the early stages of separation. Even if you were married for years and accumulated considerable property but intend to manage many details of your separation without the constant oversight of an attorney, having a sympathetic and sensitive lawyer with whom you can periodically consult can provide peace of mind in a way nothing else can.

A top-notch lawyer may be beyond your means, but that is no excuse for "going it all by yourself" if you don't absolutely have to. If you choose an attorney wisely, using the techniques recommended in this website, you should be able to navigate the treacherous emotional waters of separation and divorce with far less difficulty. Your mental and emotional state will be less disrupted by the process of divorce if you associate with an attorney who has a solid understanding of both the law and human nature. If you pick the wrong lawyer, your life could become sheer hell.

Working for your interests

Using an attorney can also make a difference, of course, not only in how you feel but also in how you fare. Your ignorance, or false assumptions, about the law can hurt you, and hurt you bigtime. If you never talk to an attorney about your spouse's settlement proposal or if you never have settlement papers reviewed by someone who can advocate for your interests, you could get the short end of the bargain without even knowing it. The lawyer you choose, of course, has to be smart enough about the law to tell you the things you should know.

Even if you still trust your spouse, this is not a time to be foolhardy. You may be entitled to things you don't even know about. Just as bad, your spouse may be consulting with an attorney without your knowing about it, so the playing field may not be as even as you believe. Don't assume, in other words, your spouse's good intentions just because your spouse tells you that his or her offer to you is fair and equitable. You can listen, as much or as little as you care to, to what your spouse has to say, but judge your spouse's offer yourself, based on all the information you need in order to evaluate that offer. You can get a lot of the legal information you need from this website. In addition, we strongly recommend that you have at least one meeting with an attorney to check out your understandings with an objective, trained person.

Why you shouldn't procrastinate

A lot of people put off going to see a lawyer. Delaying a visit with a lawyer is usually a major mistake. It is not hard, however, to understand the reasons so many people whose marriages are breaking up procrastinate in consulting with an attorney. One of the most common reasons for not going to see an attorney is denial and a fear of being overwhelmed. Denial may have psychological roots ("my marriage isn't really all that bad, things are going to get better," or "lawyers are scary, and I'd feel too intimidated," or "I can't talk to a stranger about all the distress I'm having or I'll fall apart"). Denial also may be linked to financial worries ("I can't afford the fees that lawyers charge," or "even though I have the money and know I need a lawyer, the lawyer is going to bleed me dry and I don't know how to keep that from happening"). If you decide you need a lawyer, you should usually be able to find ways to surmount these psychological and financial barriers to getting legal representation for yourself.

Understanding how an attorney can help

Another reason that people don't go talk to attorneys is a lack of understanding about when and why lawyers should be consulted ("I don't need a lawyer right now," or "There's nothing a lawyer could do for me that I can't do for myself"). This reason for delay stems basically from a lack of familiarity with what lawyers do. Occasionally it stems from personal arrogance ("I can do anything better than anyone else"). Most people do realize, however, that lawyers have specialized knowledge and skills, but these same people may not recognize that separation and divorce law is full of highly technical rules and traps for the unwary. The law is like poker, and maybe just as risky: If you don't know all the rules and how to play to win, you can lose the game.

People often don't realize, too, that you don't just need a lawyer when you've been sued or have to go to court. Properly timed legal advice can help prevent certain problems from ever arising; and properly timed legal advice can potentially reduce the dimensions of existing problems. This kind of preventive use of a lawyer can save you heartache, time and money. If you decide you need a lawyer, go see an attorney now, as soon as possible, rather than putting off the appointment.

Simplifying the process of finding the right lawyer

Finally, people delay speaking with an attorney because they don't know how to go about finding the "right" lawyer for their particular problem. Consumers of professional and other services can be confused by too few or too many choices. Yet you've dealt with such questions in other parts of your life over and over again. Consider how frequently you face such questions: Have I picked the right babysitter for my children? Is this the right dentist or doctor for me to see? Which grocery store would be best for my family? Should I send my children to this public school?

Then consider how you've made these choices about the services that will best suit your needs. Sometimes you've applied common sense and economies of time and money to your choice ("I'd rather drive to the store two miles from my home than to a very similar store twenty miles away"). Sometimes you've relied on a personal referral because it leads you to exactly what you were looking for ("This is the only dentist in town who seems to be able to calm down frightened patients"). Sometimes you've picked a business or a professional based on general reputation ("They'll give you better repair service on your new Toyota than any other dealer in a two-hundred mile radius," or "They get so many calls from all over the state that they know more about IBM computers than any other store around here can possibly know").

The selection of an attorney who feels right to you is not so different from all these other kinds of choices that you make all the time regarding goods and services. You first think about what your priorities for legal services are. Then you decide how to gather information about the lawyers who would be available to you, so that you can see how certain lawyers mesh with your personal priorities. Finally, you make a choice based on criteria such as the amount of time and money you can put into finding the particular lawyer who will do the best job for you, the professional's reputation for specialized skills, the general reputation of the lawyer's firm within the community, and whether you sense this is a person whom you can trust.

Gathering information

Gathering the information you need is not as difficult as you might think. One easy way to gather information about attorneys is to ask people you trust and respect for leads, including not only the names of lawyer but also referrals to other people who might be able to suggest names. Friends, relatives, neighbors, casual acquaintances and work associates are possible sources of leads, as are people you do business with. In particular, mental health professionals and clergy who engage in crisis couples' counselling and general marriage counselling will probably have considerable information to share with you about the local domestic relations bar. You should also try to find out some of the names of a lawyer's satisfied clients (although you probably won't be able to obtain this information from the attorney directly, for the reason that a client or former client's name remains confidential unless the client consents to the disclosure). Then talk to clients or former clients about their personal experiences with the lawyer. People in your area who have actually been through separation and divorce can be your most valuable resources in selecting an attorney, as they will have formed opinions about their own lawyers and opposing counsel. You might also talk to other lawyers you know about a particular family law attorney's reputation.

State Bar referral list

The North Carolina State Bar maintains a referral list of attorneys willing to consult in specific subject areas for a minimum consultation fee. Meeting with a lawyer on this list may, or may not, help you locate a lawyer who has the appropriate experience and depth to manage your case. The North Carolina Bar Association also has a Family Law Section, representing those lawyers statewide who are interested enough in domestic relations law to maintain membership in the family law sub-group. You should be able to obtain a list of the current members of the Section from the Bar Association offices. The Bar Association also sponsors some special programs you can inquire about, including the pro bono (no charge) Volunteer Lawyers Program. Attorneys who have signed up for the VLP will sometimes take on family law cases at no charge. However, this program has only minimal resources; and you cannot count on getting help from the VLP, which receives many more requests than it can handle.

Courthouse personnel

Another source of information are the courthouse personnel who regularly interact with local attorneys. These first-hand observers of attorneys in action may be far more valuable to your decision-making process than lawyer advertisements or the listings in the Martindale-Hubbell Law Directory. Still, advertisements and directory entries can provide additional information about the kinds of cases a lawyer handles, where he or she went to school, and the colleagues with whom the lawyer practices. You might also ask, when you start visiting lawyer's offices, if the firm has a brochure that you can have. Brochures will give you additional insights into the way the firm operates and what it seeks to accomplish for clients.

Training

The specialized training and knowledge of a lawyer you are considering is also something to inquire about. A lawyer who stays current with changes in the law of property distribution, custody, child support and alimony will most probably give you more expert advice. Similarly, a specialized lawyer's advice can be more custom-tailored to your needs and goals because a specialist's depth will provide him or her with more creative and flexible solutions to new problems. As you do when you decide between a general medical practitioner and a specialist, you need to diagnose the complexity of the issues in your case before settling on the lawyer who could most properly advise you.

In North Carolina, the State Bar permits attorneys to become certified in Family Law by passing a written examination and producing other proof of ability in the field. Lawyers who have become board-certified in Family Law have demonstrated their overall experience and grasp of matrimonial and divorce law. These practitioners sometimes charge higher rates; but you may actually save money by choosing a specialist. You may find that a board-certified lawyer can do the work at a faster pace and with less new research than generalists who know far less about the subtleties of matrimonial and divorce law. A list of board-certified attorneys is maintained by the Bar and will be given out on request.

Before you make a final decision . . .

Most vital, of course, is that you meet any attorney who has been recommended to you before you decide if the lawyer is right for you. Your first contact with the lawyer may be by telephone. Sometimes the phone conversation alone tells you enough about the person to let you know whether you want to move on to the next step and actually schedule an office appointment. If you do decide to attend an initial meeting, plan to conduct your own interview of the lawyer to learn whether you feel your needs will be understood and adequately addressed by this particular lawyer.

This point cannot be made strongly enough. No matter how strongly a particular lawyer has been recommended to you, selecting an attorney is a highly personal matter. No one else should make this decision for you. This is, after all, the person you are possibly going to retain to safeguard your rights during a time of great emotional upheaval for you, to structure a settlement that is as favorable as possible to you, and to advise you on such highly technical matters as the potential tax consequences of a proposed settlement. Your sense of who the lawyer is as a person will be extremely important in predicting how much, and what kind of, attention the lawyer will give to your case.

The first meeting

Here are some signals you should watch for in the first meeting. If the lawyer you meet with does not strike you as a person in whom you can rest your confidence, as a person who will zealously act in your best interests, or as a person who can reach a resolution of your case efficiently and sensitively, look on. If your meeting did not result in a feeling of personal rapport or if you felt the lawyer was not very attentive to your questions and concerns, look on. Don't engage the lawyer if he or she appears to be disorganized, or if you can't follow most of what the lawyer is telling you, or if you suspect the lawyer doesn't know the field very well.

Trust your first impression

First impressions are often lasting impressions. If you are uncomfortable with a lawyer's practice philosophy or style during an initial meeting, it is not likely you will grow to like the attorney a great deal more as time goes on. In one sense, picking a lawyer is a matter of personal taste. You are probably not going to feel very good anyway as you go through separation and divorce, given the huge emotional and financial issues you may be dealing with. There is absolutely no reason, then, to make yourself feel even worse by selecting a lawyer you just plain don't like.

Policies and fees

Pay attention as well to your responses to the information you pick up during an office interview regarding the lawyer's policies, including attorney fees. At the outset you should be given a clear explanation of the attorney's billing and collection policies. Will you be billed at an hourly rate? If so, what is that rate; does it vary among personnel in the law firm; are there different hourly rates for office and courtroom work? How will you be charged for other expenses such as photocopying, secretarial time, postage and like items? Are you expected to pay in advance of receiving services? If there is a "retainer" (initial advance deposit), is it refundable or non-refundable if the work is terminated or completed before the entire deposit has been used? Is a flat fee (a fixed price for a defined legal job) available from this law practice? Will your billing statements be sufficiently detailed for you to determine what exact work has been performed? Will there be a written fee agreement between you and your attorney?

Especially in domestic relations law, where the issues are so emotionally charged and clients are understandably under very great stress, the issue of fees can poison the relationship between client and lawyer if misunderstandings aren't cleared up early on. You are entitled to know how you will be charged for the work done for you, what other fees might be assessed to your case, and how you are expected to pay your bill. Don't settle for vague answers to questions about fees. No lawyer is likely to know exactly how much it will cost to handle your case; but every lawyer should be willing to tell you as much as he or she can about fees.

If the fee quoted to you is so low that it is almost too good to be true, that may be a very bad sign. Low fees usually mean one of two things. Either the attorney is hungry for business (which may mean the lawyer is green behind the ears or that other people have found out this lawyer is not very good), or he or she doesn't really expect to finish your case for the quoted fee (which means the retainer amount is no indication of how much you will eventually spend). Do some sleuthing to determine if the attorney is a novice or if the quoted fee is unrealistic in light of the work that will need to be done.

If the quoted fee is unrealistic, that can also be a sure sign that the lawyer has lots of clients signing up at those bargain-basement prices. All those clients are poorly served because the lawyer has too little time to spend on each individual's case. Waits (for appointments, for returned phone calls, for work to be drafted, for court dates) will be long in such offices; and you may wind up seeing you have just gotten lost in the crowd. You may also wind up paying the "cheaper" lawyer more money in the long run, based on such a lawyer's lack of specialized knowledge and inefficiencies in the lawyer's office. In sum, large caseloads do not translate into quality legal services. Stay away from the lawyer who appears to offer large discounts.

Please visit our Meeting with an Attorney page for information that will be very helpful in preparing yourself for your meeting with an attorney. Our page on Attorney Fees will give you an idea of how much it will cost to hire an attorney.