SIX WAYS TO USE A FAMILY LAW LAWYER
One Time Consultation (legal advice)
The client prepares specific questions and organizes information in advance in order to obtain task specific assistance or general advice. This consultation may be used to assist the client in determining which type of legal service will be most suitable for his or her situation: self-conducted negotiation with attorney consultation on the side, mediation, cooperative divorce, collaborative practice divorce, or full representation for in-court litigation. The client represents himself or herself unless a retainer agreement is signed with an attorney. Fees are charged hourly and are paid at the end of the consultation.
Periodic Consultation (including consulting attorney to mediation or consulting attorney to self-represented party negotiating directly with spouse or partner)
The client legally represents himself or herself in an out-of-court negotiation. The attorney-client consultations may be used to prepare for mediation sessions (see Mediation, below), or to coach the client while he or she negotiates directly with a spouse or partner (“the kitchen table” divorce or separation). The consulting attorney may prepare and file pleadings in the client’s name but will not become attorney of record or communicate with the opposing party. The client uses the attorney for spotting legal issues, legal analysis, drafting and filing a petition in the client’s name, preparing settlement proposals, preparing the final agreement, and filing the uncontested judgment in the client’s name. A Limited Scope Legal Services Retainer Agreement is signed in which the consumer-client releases the attorney from responsibility for conducting formal litigation discovery or verifying underlying facts relating to evidence. Fees are charged hourly and are paid at the end of each consultation for the first couple of meetings, after which a small retainer fee deposit is required, the balance of which is refunded to the client when the case is complete.
Mediation (neutral negotiation facilitator; attorney-mediator does not represent either party)
Two clients hire an attorney-mediator to facilitate the negotiation of an out-of-court settlement. The attorney-mediator oversees their voluntary exchange of state required disclosure information and documents, spots issues, provides legal information without taking sides, mediates conflicts, drafts a legal settlement agreement which is incorporated into a judgment, and files the judgment in the clients’ names unless they have attorneys of record to file it. The clients are self-represented unless they are represented by attorneys of record who refer them to, or consent to the client’s own decision to, participate in mediation. The mediation contract contains provisions to assure confidentiality prior to the execution of a settlement agreement. The mediator prepares the written marital settlement agreement and allows time for the clients to get it separately reviewed by their own consulting attorneys. Fees are paid from a moderately funded retainer account, the balance of which is refunded when the case is completed.
Cooperative Divorce (non-adversarial attorneys, each representing one client)
In a cooperative divorce, each client hires a cooperative attorney to be his or her spokesperson in negotiating an out-of-court settlement. Cooperative attorneys usually have both mediation and past courtroom advocacy experience. The negotiation is arranged to take place in “four-way” meetings attended by the attorneys with clients, so that each client hears first-hand the statements being made on his or her behalf by the attorneys. The client may choose to either participate in the four-way negotiation discussion or leave the talking to his or her attorney while taking periodic breaks in the discussion for confidential attorney-client conferences. The client may choose to frame the negotiations based on “by-the-book” family law, on “needs and interests,” or a combination of both. Each client’s attorney is committed to adhering to the same respectful and reasonable communication ground-rules that are used in mediation. The two cooperative divorce attorneys work together to determine what options are available to the clients, and each client gets separate, confidential advice from his or her own attorney explaining those options. Sometimes new options are generated during the negotiation sessions. When everything is settled, the cooperative attorneys write up a marital settlement agreement and get the judgment without anyone having to appear in court. Fees are paid from a moderately funded retainer account, the balance of which is refunded when the case is completed.
Collaborative Practice Divorce (interdisciplinary team; non-adversarial negotiation)
Each party hires a collaborative attorney and a divorce coach. The attorney’s role is dedicated to out-of-court settlement negotiation, meaning that the attorney may not go on to represent the client in court if settlement is not reached. The parties conduct the negotiation primarily using an “interest and needs” based approach. The clients are informed of the law and discuss settlement options in joint meetings with their attorneys and coaches. The focus is on negotiating an arrangement which is best for all family members in the long term as well as short term. This model is especially useful in cases which might spiral into highly litigated, acrimonious custody battles. The divorce coach, as a psychotherapist with forensic experience in divorce cases, discerns the emotional and psychological issues in the family system and may inform the client concerning how custody disputes are handled in adversarial courtroom system, to give the client insights which support out-of-court settlement. Other experts such as financial specialists, property appraisers, tax experts, vocational evaluators and job-search counselors may be added to the inter-disciplinary team as needed. Fees are paid from a moderately funded retainer account, the balance of which is refunded when the case is completed.
Full Legal Representation (attorney of record)
The client hires the attorney as his or her representative and transfers to the attorney the responsibility to prepare pleadings, appear in court, communicate with opposing counsel, conduct discovery and verify underlying facts relating to evidence. The attorney must approach the case from the outset in terms of preparing for a court trial although settlement proposals will be made prior to trial. A Full Representation Retainer Agreement is signed and a retainer fee is advanced by the consumer-client. Fees are charged hourly and drawn from the retainer fee deposit. The attorney may require the retainer fee deposit to be replenished on an ongoing basis during the proceeding.
(Copyright 2014 by Faith Jansen. Faith Jansen, Attorney at Law, does divorce mediation, cooperative and collaborative divorce, pre-marital agreements, post-marital agreements, juvenile guardianships, and adoptions, in Walnut Creek, Contra Costa County, California. See her website at: www.fjansenlaw.com and find her on Facebook at Faith Jansen Attorney at Law.)