Questions to Ask Before Retaining a Lawyer if you are a Victim of Domestic Abuse
Final post of three-part series by our reader ‘Still Reforming’
Someone told to me early on in the process of divorcing my abuser that you have to trust the professional with whom you are working. As I moved through the process, I trusted my attorneys less and less – for good reasons – but it seemed counter-productive to start from scratch hiring a new attorney and more advisable to just cut my losses using my present attorneys to get out of the divorce process sooner rather than later.
The way I cut my losses in the end was to put forth a list of grievances filled with details about how they billed me for work never achieved – like security issues that were never folded into the final divorce decree – and double-billed me for tallying up reimbursements that never were sought. I fully intended to take those grievances to the state bar association if I wasn’t able to get the final bill wiped clean (for $3,000, after I had already paid tens of thousands). They met my demands.
So don’t be afraid to negotiate up front for receiving monthly bills from your attorney for hours put into your case for things like email exchanges, phone conversations, court documents to be filed, faxes, etc – things over which you may have little control, but for which you could pay handsomely. There’s a reason why so many lawyers jokes abound; inside all humor is an element of truth. Sadly, it’s at the quite literal expense of the clients.
Here are a few questions you may want to consider taking in to ask an attorney before retaining him or her:
1. How much is this going to cost me?
There likely won’t be a definite answer given to you for this question since attorneys generally bill by the hour, but this is a business relationship you are starting with them. The biggest mistake I made was presuming that because I cared so much about the details of domestic abuse in my own case, surely the professionals (attorneys, judge) would care too. I didn’t realize at the outset that my expectations (advocacy) and the attorneys’ expectations (advice) were not aligned.
Since this is a business relationship, you have every right to ask up front what this will cost – even if just a ballpark figure. That way, you can decide whether or not it is worth retaining this attorney or firm or not. Also, as you work through the days, weeks, and likely months (if not years) of your case, you can keep tabs on how close you are to meeting that figure they set, if they do. If they don’t, ask another. And another. Don’t rest until you’re satisfied. It’s your money, and you may have need of it in the future if your case goes as mine did. The wheels of (in)justice generally turn slowly — so you have more time than you might think for this process.
Attorneys have been known to set a fixed fee for the entire case, although I have read of cases that even once that was done the attorneys informed their client that additional fees would have to be added due to the ongoing nature of the case — a situation which is more likely than not when dealing with an abusive, self-centered egomaniac.
2. What is the law in my state with respect to domestic abuse (DA)? What is considered to be domestic abuse?
Note: You can use the standard terminology DV, which stands for Domestic Violence, but I use the word “abuse” here lest your divorce attorney be unacquainted with domestic violence and equate it somehow with only physical abuse. Bear in mind that even if you are careful to say ‘domestic abuse’, many people including many lawyers will think only of physical violence, especially if in your state the legal definition of domestic violence is restricted only to physical assault.
These questions you put to the lawyer are not asking for his/her personal opinion, but the way the lawyer answers the questions will probably give you a clue as to the attorney’s perspective on abuse and how familiar s/he is with it. The response I received from my attorney related to my husband’s anger spinning the car around with us in it (“Men explode sometimes”) raised a big red flag to me that I wish I had heeded. I should have asked for my money back from the retainer then and there.
My attorneys did point me to a DA professional who counsels targets of domestic violence and occasionally testifies for them in court. I met with this man for an hour (at $100 per), seeking his agreement to testify in court regarding the tactics of abuse we experienced in the home, confirming them to be detrimental to our child. While this professional agreed that my husband’s behavior was abusive, he told me that (1) it wasn’t enough legally and that my husband’s behavior couldn’t be predicted to know if/when it would cross the legal line and (2) the judge in whose chambers we were soon to meet was not one predisposed to take any outside professional counsel.
I knew then that the Court wasn’t interested in the truth of what had happened to my child and me, since we bore no visible physical marks of abuse, though my attorneys spent countless billable-to-me hours listening to my tales of woe, via email and on the phone. These same attorneys who billed me thousands of dollars didn’t present any of what I had suffered in the home as evidence in court, since technically nothing my husband had done was illegal. Yelling at one’s wife in front of the child, name-calling not using four-letter-words or curses, spinning the car around with the family in it, intimidation and provocation, lies and manipulation – none are technically illegal and therefore, the judge never heard it.
So the first hard lesson I learned was that the truth may not be of interest to the Court – not unless that truth has resulted in outwardly physically harmful damage. (This does not necessarily include the physical manifestations of abuse, such as Post-Traumatic Stress Disorder.) In some cases, expert witnesses (ie, psychiatrists, counselors, medical practitioners) may provide valuable input to the Court, but I had been forewarned by legal counsel that the judge in our case does not value such input. This was confirmed by the domestic abuse counselor with whom I met (and paid) for one session to share the details of my particular case. The counselor confirmed he had been before this judge with more evidence than I had and it resulted in no benefit to the target of abuse.
3. How will you handle a case that involves particulars of domestic abuse, such as (give one or two brief examples)?
You might like to give an example of abuse that does not include physical violence or threats of physical violence but is characterized by a longstanding pattern of coercive control with emotional, psychological, financial abuse, gaslighting, isolation of the victim, etc. Ask how the court is likely to respond to that kind of case, and how the attorney would work for you to try to obtain fair justice for you even if the state discounts the non-physical kinds of abuse.
4. What are my chances of receiving alimony, child support, sole custody, time-sharing, etc?
Although the facts in your particular case may influence those chances, by and large I have learned that, with variation given to state and/or country law, the Court by and large tends to favor shared parental responsibility in divorce cases. The ostensible reason for this is, and I quote from an attorney’s webpage in my state, “because most psychologists agree that it is the healthiest for the child when both parents take part in caring for their children’s mental and physical needs.” We all recognize that as fodder fit for the compost pile, but it happens to be reigning pop psychology that has infiltrated societal thinking these days.
5. What does the law in my state require for child support? How will you handle child support? If the other side pushes for me to get minimal or no child support, how will you handle that?
From the aforementioned attorney’s page in my state: “Child support is awarded in (state) based upon a mathematical formula that is revised every year according to (state) law. It leaves the judge, assigned to your case, with very little discretion. Therefore, it is sometimes in the best interests of both parties, in a divorce or paternity case, to decide child support themselves rather than leave it to the judge.” [Readers outside the USA: be aware that your child support laws may be made by the country, not the state. Your country’s system might be quite different from what happens in US states.]
This is why it’s good to ask up front how your attorney plans to handle child support. In the end, it’s better to know up front if it will be formulaic rather than be strung along, as I was, for months and be greatly disappointed come settlement or mediation time.
Likewise, be sure to ask for child support retroactively. My attorney overlooked this and in my own state of considering all the bills, how and where our child would be educated, timeshare arrangements, purchase of the marital home, divvying up the “stuff” (chattels), thinking about how I’d be able to work, and so on, I overlooked a lot of those details that could have resulted in thousands of dollars back in my pocket (like his share of the property tax that I alone paid, retroactive child support, and so on). I thought I was paying the attorney to remember these things. Again, here is where the Mr. $400-an-Hour and I were thinking differently.
6. What is the law in my state regarding imputed income and how will you defend me in this area?
As a Christian, this is the first time I’d ever heard the word “impute” where it had a very negative connotation. I never even knew this existed, but indeed I was imputed an income based on my resume alone (not on current economic conditions or the lack of employment availability in my highly agricultural area and particulars related to our child’s special needs). I wouldn’t have even known to ask this question, but if it might apply to you, ask.
7. What is the law in my state regarding “time-sharing” (or visitation) of children? What practices do the courts and opposing lawyers tend to use to help arrive at a ruling on child custody and “time-sharing”? How do you deal with cases where the opposing side alleges that your client is causing Parental Alienation Syndrome? Who is the judge in our case, and what is his or her history on this subject?
8. What are your billing practices and how do you handle them? Would you be willing to send me itemized interim bills during the time you are representing me?
9. In my inexperience of how the legal system works in divorce and family law, I may not discern relevant from irrelevant information. If I ever give you information that is not going to be of use for my legal case, would you tell me so we don’t waste money?
The goal of this question is to help save you from unnecessary expenditure on legal fees.
A few extra thoughts thrown in for good measure, as words to the wise:
- I wish I had not equated the cost of the attorney with their eventual effectiveness.
- I wish I had heeded warning signs early on in the relationship with the attorney.
- I wish I had understood the absolute power of the judge.
- I wish I hadn’t wasted time trying to educate my attorneys about abuse because every hour spent equals hundreds upon hundreds of dollars, which quickly add up to thousands. A caveat here: Attorneys are individuals too, and you may encounter a real gem of one, but in the end, educating your lawyer won’t change the letter of the law.
- I wish I had questioned the “wisdom” of the counsel I was receiving during the process whenever I disagreed with it, such as when Mr. Four-Hundred-Dollars-an-Hour said he’d seek “as little as possible” in child support for me.
- I wish I had better researched current divorce law and child support law in my particular state.
- So in summary (if you’ve actually made it this far through the series and if it’s possible to summarize all that) the letter of the law is more important in court than the spirit of the law.
This is not to suggest that the letter of the law isn’t important. The letter of the law is important, but when you’re wrapped up in the details of abuse (and we know there are many) it’s all too easy to think that the people to whom you’re paying hundreds if not thousands (if not tens of thousands) of dollars actually care about what they’re hearing. They may even actually care, but be unable to use the information in a court of law.
So if and when these things may happen to you, be gentle with yourself, as I am now trying to be – understanding that there’s so much going on emotionally that it’s hard to keep all the balls in the air without letting some drop. In my case, I let a lot get past me that I wish I hadn’t, but we can’t move back the hands of time.
Whether it’s hindsight looking at attorneys or abusers (or abusive attorneys), pause to reflect on our Lord’s absolute sovereignty over even this and seek His wisdom. He delivered me – and He can you too. I made it to the other side of that wretched process, and He never stopped providing for me and our child. As she recently told me, “I’m learning more about being a Christian in this trial than I ever learned before it. I think I’m learning how to trust God.”