I. Choosing a Lawyer

Managing the legal process is unbelievably tough, especially when you are in a fragile emotional state. Picking a divorce lawyer is one of the most important decisions you will make. Of course you must choose a capable and affordable lawyer, one who has been well recommended. Moreover, a high degree of trust in the partnership with your lawyer is critical. You must be confident your lawyer will fight like hell for your best interests, but will also be brutally honest with you about your situation and likely outcome.

It is therefore important to take your time in choosing a lawyer so you can do your research, interview a number of candidates and think carefully about who can best represent you.

Get Referrals and Interview Multiple Lawyers

As difficult as it sounds, you should interview a number of lawyers. You will find they have different approaches and personalities. Unfortunately, the internet is not a good source of referrals. So you need to reach out to whomever you can to get recommendations. The best recommendations come from those recently divorced, who can also tell you the strengths and weaknesses of the lawyer they chose and those they interviewed.

It is common practice (at least in Boston) for the initial meeting with a prospective divorce lawyer to be free of charge. After all, you are a potential client interviewing them. Expect they will spend about an hour with you at the initial meeting. You can make the most efficient use of the time by sending them some background material, for their review prior to the meeting. If you find in the meeting the attorney has not reviewed the material, that is an indicator of how you will be treated as a client.

In particular, you should prepare a document outlining the basic history of your marriage and family. This document should include a high level view of your family financials (respective incomes, assets and liabilities). You should also include your wish list for the ideal divorce settlement. Discussing this with each attorney you interview will provide an important reality check for you. You may not like what you hear, but it is critical to be realistic about your chances and plan accordingly.

You should prepare a second document outlining the history of your marital difficulties, including any resulting financial implications. You should also have a clear set of interview questions you would like to discuss. Mine included questions about the following:

• The lawyer’s background, including how long they had been in practice, how they approached working with their clients, their fees, and what they believed were their strengths.
• Their history of handling cases in my jurisdiction — did they have experience with the judges in my county, for example?
• The process of getting a divorce – what were the steps and what should I expect to happen?
• How much trial experience did they have?
• What was their initial impression of my case? Could they give me a sense of what I might get in a divorce settlement? Was my wish list for a divorce settlement realistic?
• What advice would they give me for how to choose a divorce lawyer?

Finally, take notes during the meeting and add any thoughts you have about the lawyer afterwards. I found there was something to learn from all of them. The learnings helped me to sort through the strengths and weaknesses of each lawyer.

Hourly Rates

Getting a divorce is a lengthy and costly process and you need to find a lawyer who matches your financial situation. Lawyers’ hourly rates differ widely depending on reputation, experience, partnership level and firm. A big city like Boston has its “Divorce Lawyers to the Local Stars,” who are reputed to be “the best” and therefore have the highest hourly rate (which doesn’t necessarily translate to ability to secure a good settlement). Everyone knows who these lawyers are and has opinions about them. If you interview one of them and you are not in the right income bracket, they will punt you to one of their associates, who may be a great lawyer for you but don’t expect any attention from the name partner.

Newly minted partners at a larger firm are a great option as they have a proven track record and a more reasonable hourly rate. They are also more likely to pay attention to clients who aren’t in the highest income brackets. Even their rates may be prohibitive, however. If so, then an associate at a larger firm or a small suburban firm might be appropriate.

Lawyer Personality and Trial Experience

It is tempting to want to hire the town “pit bull” to represent you, a bully who is successful at securing a settlement, through the force of his or her aggressive, even obnoxious personality. They will try to intimidate your spouse and his lawyers and may be quite successful at pushing through a settlement, depending on the personalities involved. Their bullying nature may not be as successful in a trial setting, should it come to that . In addition, you should not be surprised if such a personality is condescending to you too.

Even if you decide against hiring the “pit bull,” you should look for a lawyer with the backbone to be a strong advocate for you in negotiations, and at trial if necessary. Extensive trial experience shows the lawyers’ toughness and provides an important credible threat to the other side — you won’t settle because you are afraid to go to trial.

It is also important for your lawyer to have strong experience in your jurisdiction. If they are well liked in the courthouse by clerks, bailiffs, even justices, even better. Their previous experience and reputation with judges will help you in the process as you weigh the odds of settling versus going to trial.

Business Acumen

If you or your spouse has a complex employment agreement, or your asset picture is less than straightforward, you need a lawyer or firm with strong business skills – they must be able to find all of the pockets of money and how they are paid out. You should not assume your spouse will be 100% forthcoming or clear about the financial picture. Your lawyer may have to dig it out by talking with his employer, your accountant and your investment advisor – he or she needs to have the business knowledge to do so.

 Personality Fit

Your lawyer is your partner during a very vulnerable time for you. You will be spending a great deal of time with him or her. Most importantly, you will be entrusting this person with your financial future. Your lawyer shouldn’t necessarily be your best friend, especially if it means he or she won’t give you the bad news. At the same time, it will be a tough road if you aren’t comfortable with your attorney. Ask yourself whether the two of you communicate easily. Can you trust this person and do you value his or her ability to get the job done?

 

II. Analyze Your Banking History: How Has He Spent Family Money?

One of your lawyer’s first requests will be for you to provide the financial information and documents needed to produce a formal financial statement. This means collecting statements reflecting your respective incomes, assets and liabilities.

They will likely ask you to collect up to a year’s worth of bank statements for their review. These are helpful in estimating the financial needs of the family as they show in detail the expenses that have been paid. As you are collecting the family bank statements, you should look carefully through them to determine whether your spouse has withdrawn family money in a suspicious manner. If you do find surprising withdrawals and/or expenses, it may be worthwhile to investigate further. If the amount is large and you can prove it was used to pay for an extra-marital relationship, you have a credible argument for getting half of the money back. In addition, if you live in a state recognizing fault in the break up of a marriage, proof of his infidelity may help you to win a larger alimony award. ¹

Identify Suspicious Withdrawals and Payments

Review the statements, line item by line item and look for strange withdrawals from checking or savings. These include withdrawals surprisingly large or occurring in surprising places. The timing of withdrawals may also raise concerns. Have a number of withdrawals occurred on the same day, for example?

I found it easiest to go through our hard copy bank statements, highlighting anything suspicious. I could then record the withdrawals, their location and the date to look for patterns.

I found two types of suspicious withdrawals, ATM and teller assisted. Scott had a large number of ATM withdrawals in Montvale, New Jersey, where his mistress lived. I also saw withdrawals at ATM locations I never used and in amounts much larger than I ever withdrew. Often several of these occurred on the same day as shown below.

The teller assisted withdrawals, shown in the example below, were cash withdrawals made by going into the bank and transacting with an actual teller. As these were much larger withdrawals, I suspect the cash withdrawn exceeded the cash limit for the ATM. This was a type and magnitude of cash withdrawal I did not do.

Finally, as shown above, I was surprised at the magnitude of his credit card payments. Since he had a business credit card and had said he used his companion Platinum card for everything but his business rental car, the large payments to his two other personal cards were quite concerning.

Build a Spreadsheet Capturing the Spending

You will need to go back through bank statements, month by month to find out when the spending started. Once you have characterized the types suspicious withdrawal behavior, you can highlight the occurrences as you go through the statements. In my case, the types I was looking for included

• Teller assisted withdrawals (as I knew I didn’t make them)
• ATM withdrawals at locations I didn’t go to, especially those in New Jersey, New York and Connecticut where he went on business. Also ATM withdrawals in amounts higher than I would have done.

I looked for these withdrawals in our checking and savings accounts (he withdrew from both). I also found he had withdrawn money from our credit line. I went through our bank records, month by month, checking withdrawals and credit card payments until I found the beginning of the pattern, which was the fall of 2008. He had been grabbing cash from the family accounts for four years!

An excel spreadsheet is an excellent format for capturing the withdrawal events. You can construct the spreadsheet to provide sufficient detail on each event (amount, location and date) and total the amounts to show the overall spending that is suspicious. I built separate spreadsheet pages for teller assisted, ATM and credit line withdrawals as shown below. I noted in the teller assisted and ATM pages whether the withdrawal was from checking, (c) or savings, (s).

Teller Assisted Withdrawals (2010 only)

 

ATM Withdrawals (part of 2009)

 

Credit Line Withdrawals (2008 – 2010)

 

You should also create a summary spreadsheet page showing the overall magnitude of the suspicious spending as in the example below.

Summary of Dissipation

My summary of Scott’s suspicious withdrawals over the four-year period was nearly $250,000. That was a lot of money! There were also the excessive credit card payments. I fully expected I would find suspicious charges if I could get copies of his credit card statements.

I often wonder why I thought to look through the bank statements before handing them over to my attorneys. It wasn’t something they had asked me to do. Maybe I subconsciously knew something was up. The suspicious signals were certainly adding up. Scott’s request in January for an additional $35,000 for his own personal account seemed excessive to me, particularly since he had taken the same amount in October, only three months earlier. Having Jeffrey, my first attorney, tell me to close down the credit line also raised a red flag. Then too, I was certain he was still involved with Wendi, despite his assurance she wasn’t the reason he moved out.

Or maybe I started looking through them simply because Patrick had advised I would need to prepare a financial statement that included a detailed picture of the family expenses. The bank statements held the data on our spending I would need to estimate the family expenses.

Either way, once I found the first teller assisted withdrawal, I went on a tear to get to the bottom of it.

1. Seventeen states and the District of Columbia are “No-Fault” states – the court does not recognize blame in the failure of a marriage. In the remaining thirty-seven states, proving fault, such as infidelity, can result in the non offending spouse receiving a greater share of the family assets and ongoing support (e.g. alimony). Even in the seventeen “No Fault” states, if a spouse has significantly impacted family assets in his or her spending on extramarital affairs, he or she can be required to some of the money back(www.family.findlaw.com/divorce/an-overview-of-no-fault-and-fault-divorce-law.html).