By Michelle Petrowski, CFP
Divorce can have a significant impact on our financial well-being as well as our future retirement, and having the right professionals on our team can really make a difference.
Ideally, if we can first discuss and negotiate the majority of items for our divorce on our own, the better off we are. Mediation is a solution, if we need some additional help working out details and staying focused. But sometimes, we don’t know what we don’t know about the process. Things like taxes and the long-term impacts of the decisions we are agreeing to, or a difficult spouse, means having an attorney may makes sense. Regardless of the reason, thinking through what to ask, and having some interview questions prepared before those consultations, can be helpful.
Questions to ask a divorce attorney:
- What percentage of your cases typically go to trial? And what percentage of your clients have a more favorable outcome than was previously being negotiated? Don’t be afraid to ask questions to help determine how litigious your attorney is. Estimates on the percentage of cases that get tried range from 2 percent by some experts, to 5 percent by CBS, to 7 percent according to a Massachusetts survey, to 10 percent by an expert from California. According to an article at lawyers .com, about 10% of cases go to trial. These numbers mean that, at worst, 90% of divorces get resolved outside of court, which are good odds for those worried about the expense of trial!
Though there is no definitive answer about how many divorce cases go to trial, the range of numbers makes it clear that only a small minority are ever decided by a judge. This is important, because no one wins in this situation. The more likely an attorney goes to court, the less likely they will be adept at achieving mutual settlements or working towards mutual settlements, which means a high bill for you and less for your family.
- What are your processes for reviewing the financial affidavits for accuracy? This one could surprise you. In my experience, only the highest end, most experienced family law offices even question the accuracy of a financial affidavit. They take your word for it – and your spouse’s.
Even if you aren’t worried about dishonesty on the part of your spouse, I have yet to see a financial affidavit that didn’t have at least one mistake. Since this is what child support and maintenance will be based on, it is CRITICAL the affidavit is completely accurate.
- Is it OK if I add a divorce financial planner to my team? Again, if you ask an attorney this question and the answer to this is anything but “yes,” BEWARE! Why would an attorney not want you to have all the information you need?
Don’t be surprised if your attorney doesn’t know anything about CDFA®s (Certified Divorce Financial Analysts) and their work. Attorneys are very protective of their billable hours, and most aren’t really interested in delving into the intricacies of the financials of your case.
They also are NOT financial specialists and won’t really want to do anything other than opt for a 50/50 split on everything which is RARELY the best thing for any couple. The type of asset, taxability, and cash-flow needs of both parties, never mind the longer-term net worth impacts, need to be considered and weighed when making a division. Typically, these unique considerations dictate a split that differs from a 50/50. A CDFA can save you and your spouse thousands of dollars in both taxes and attorney fees.
- I want to keep the house but don’t have enough equity to refinance. What are my options? In my experience, most attorneys will say you have two options: refinance the home or sell. I’ve rarely heard a suggestion of other options.
We are now in an environment where rental prices are exceeding mortgages in many locations. Selling the home and having the less monied spouse renting, may really disadvantage the family as a whole.
Other options could include continuing to own the house jointly for a period of years, usually 3-5, at which point the home is sold or refinanced and the proceeds split between the former spouses. Or continue to share ownership for a period of 3 – 5 years and the spouse not living in the home would receive other assets in lieu of his/her share of the equity. To protect their credit, a clause can be written into the divorce decree that requires the spouse living in the home to provide proof of mortgage payment each month. If at any point the mortgage is more than 30 days past due, the house must be sold. A CDFA® can help with the terms of such an arrangement.
- Will my spouse and I have an opportunity to try to negotiate a settlement? I find that most attorneys just shuttle written offers back and forth between you and your spouse’s attorney without offering you a settlement negotiation meeting. Why? One reason could be because they get to bill more for doing all the document write-ups and responses. Imagine how productive it could be if you both could meet in a room with your attorneys, or even a mediator, and actually speak to each other on each point. Ask if your attorney is willing to do this.
Of course, there are other questions to ask, and always trust your gut. If someone is promising too much, they may be playing on your vulnerability around the outcome that you seek. Look for someone that speaks less, listens more, and with whom you connect. I had two attorneys in my divorce and didn’t trust my gut early on. Instead, I was concerned about “starting over with another attorney,” and I know many other folks that have had this experience as well.
It’s great to check out bar complaints, but understand that many times there are no real “investigations” into allegations that satisfy a complainant (I know this firsthand). Complaints are usually removed once investigations are complete, so there’s no way to determine if there may be a track record or a pervasive pattern of behavior on the part of the attorney by viewing a “history” of similar complaints that were “resolved.” So, don’t hesitate to reach out in local Facebook groups and ask the opinions of others that may have used the attorneys you’re considering.
About the author: Michelle Petrowski, CFP®, CDFA®
Michelle Petrowski, CFP®, CDFA® (formerly Michelle Buonincontri), is a financial planner, wealth manager, divorce financial strategist, and personal finance coach. She is the founder of Being in Abundance and Being Mindful in Divorce, as well as an avid volunteer at Savvy Ladies in NY and Fresh Start Women's Foundation in Phoenix, and has worked closely with the Arizona U.S. Service Members. Michelle has been featured in CNBC, Forbes, MarketWatch, Investment News, Yahoo Finance and other media outlets. You can email her at Michelle@BeinginAbundance.com.
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