Consulting Attorney v. Retaining Attorney in Your Divorce Case

Consulting Attorney versus Retaining Attorney in Divorce

I want to start out by saying I have great compassion for those going through a divorce.  In addition to the already difficult adjustments of transitioning to a new life (new living situation, increased expenses, half the estate, stress, lack of sleep), you have to really protect your children and pets, making sure that they are not negatively affected by the change.  And you don’t know the law, or where to start, or who to turn to, because lawyers in this town just want $$$ you already don’t have!!!

You are not alone.  As Roosevelt said, “If you are going through hell, just keep going!” If you have good friends, and family – spend time with them outside.  I highly recommend Griffith Park.  Hike up to the observatory, and take a deep breath.  It’s truly awesome how BIG the world is, and how seeing the BIG picture can help you keep in perspective what you are going through.  (You just may see me up there!  That’s how I keep my sanity!)  Indulge in good books out there.  Avoid social media, as it tends to increase depression and loneliness.

When you are finally in a good mental state to go through adjustments, it’s time to do a little research about your divorce.   It is VERY important that you do this instead of immediately hiring a lawyer.

I am a divorce lawyer, and it pains me to admit this – but sometimes, divorce lawyers really muck up your divorce.

They may increase your paranoia. So you’re going through a divorce, and you and your ex have mostly agreed to everything.  You are ok with the settlement, and you desperately want to move on, but there is a gnawing voice in the back of your head, “Is this everything I am entitled to?  What if I am missing something?” You go see a reputable divorce lawyer, who advises you, with a “Disclaimer of Guarantee” (meaning, they can never guarantee results), that you are definitely entitled to more!  Why agree to joint custody, when you can get MORE CHILD SUPPORT?  Why agree to divide the house when your husband’s plumbing business DEFINITELY worth 10 million dollars? He may be HIDING ASSETS!

They may overlitigate.  It sounds so aggressive and mean to “sub poena” people and documents, doesn’t it?  But did you know, California Family Law makes it MANDATORY to exchange documents before a settlement can be signed and enforced, AND in 100% of cases where I represent the in-spouse, they produce the documents voluntarily???  It is the law. To ensure a fair settlement, all of your stuff needs to be on the table.  If it ain’t on the table, it’s an “omitted asset” under Family Code 2556, and there are remedies for that.  Interestingly enough, did you know-  in about 75% of my cases where I represent the in-spouse, and my client has produced EVERYTHING, the other side STILL spends money “sub poena”ing documents to get the SAME thing?  Discovery battles is how unscrupulous family law firms feed their overhead.

They may create conflict.  I was in Court the other day, when I saw 2 female super-aggressive pitbull attorneys screaming at each other, almost pulling each other’s hair.  Their horrified clients sat huddled together in the corner, helplessly witnessing this incredibly unprofessional catfight, a fight over an issue that is NOT part of the divorce case.These attorneys are absolutely billing their clients.  Divorce is emotional, and it is not unusual for the emotions to spread like a rampant virus onto those who handle it.

Traditional litigation attorneys are expensive.  It’s not their fault.  They come out of law school saddled with over $200,000 in student loans, and they are stressed.  Litigation takes a toll on them.  It’s where the money is, but it kills everyone.

Ambrose Bierce said, “Death is not the end. There remains the litigation over the estate.”  Litigation is extremely stressful for us attorneys.  Litigation has deadlines.  Briefing.  Responses.  Discovery.  Ex parte.  Court appearances are often scheduled by the other side, sometimes on very short notice, and the litigation attorneys do not have the luxury of SCHEDULING when things are due and when they must be in Court.  When the other side propounds 30 sets of discovery, due on the WEEK you are in trial, and then you get ex parte’d the very next on a different case because one of your clients’ children has been kidnapped, and your roof is leaking due to the recent thunderstorms, it is very stressful.

Unless you’re a family law litigator, I do not think you can possibly understand the enormous loads of burdens we carry.  Many family law litigators I know have health issues.  Some have passed away early.  When you retain a traditional attorney to represent you, they are laying down their lives for you.  Even if their own mother passed away the morning of Court, they have to BE in Court for you instead of with their mother.  Even if you have not paid your bills and you owe them over $100,000, they are still working for you until you relieve them by signing the Substitution of Attorney, or the Court relieves them after they successfully win a Motion to be Relieved as Your Counsel.  Because of this tremendous sacrifice, they are expensive.  They litigate because it pays money.  That is also why, after many years of litigation, many lawyers yearn to be “private judges” or “mediators”, so they can leave behind this unhealthy and toxic life.

Remember this the next time you see those litigators in court looking tired, beaten-down and unhealthy.

They charge a lot of money, because they have earned it.

Mediation is the best option, but sometimes you and your ex aren’t ready and you need some legal advice that the mediator cannot provide.  Mediation is the best option when both sides are ready to come to the table, and utilize the services of a neutral third-party who knows the law and can help them reach an agreement.  However, the mediator is a neutral party, and cannot provide legal advice, and you just need an attorney on a limited basis to ask your questions.

Enter the role of consulting attorney in your divorce.  If you have a pretty mature relationship and attitude, and your spouse and you have a desire to keep costs low, try a consulting attorney.  If you decide to file for divorce, but the notion of you hiring a divorce attorney is noxious to your spouse, try a consulting attorney.  If you just need paperwork drawn up, and will handle the divorce on your own with a spouse, but need limited legal support, try a consulting attorney.  If you need a second pair of eyes on your settlement agreement because you don’t completely understand the legalese, try a consulting attorney.  If you are willing to be brave and handle your own divorce instead of using an attorney to  “bully” your spouse, try a consulting attorney.

Reasonable Expectations.  Consulting attorneys cannot represent you in court.  Unlike a traditional retained lawyer, they are NOT your representative.  Consulting attorneys can prepare paperwork for you in your name (ghostwriting), and advise you how to act in Court.  However, you represent yourself.  Consulting attorneys will not communicate with the other side.  Because they are your consultant behind the scenes, they will not talk or act ON YOUR BEHALF.  You will need to communicate with the other side, or the other side’s attorney.  Finally, consulting attorneys are limited in their knowledge of the case, because YOU are in control at all times.  Because they are not the attorney of record, you will have direct access and you will be served with documents/pleadings in your case.  It is your responsibility to keep your consulting attorney in the know at all times.

Trust yourself.  In closing, trust yourself.  Ending a marriage is an inexplicably difficult task.  You must have so many doubts and fears, and you are vulnerable.  I pray that you do not put all of your trust in the divorce lawyer that promises you unicorns and butterflies.  You have been hurt by your spouse and it’s your instinct to trust that unscrupulous stranger over him/her.  But take a step back before hiring a “pitbull” who does not have your best interests in mind. Go, and find yourself – make the climb up to a mountain where you can see how small everything is from a distance. 


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Kelly Chang Rickert

Kelly Chang Rickert (formerly Kelly Yi-Yi Chang) is the founder of the Law Offices of Kelly Chang, A Professional Law Corporation, a firm dedicated exclusively to Family Law. She has been certified by the California State Bar Board of Legal Specialization as a Family Law Specialist. She is frequently quoted in the media, and is a legal expert for Style Network, TV Guide and MTV on Mel Gibson, Tiger Woods, Britney Spears, Christie Brinkley and Madonna divorce and custody cases.

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