Maybe you aren’t 100% sure, but you are thinking that this is it and that your marriage might be over. If so, it is time to start gathering information and looking for the right divorce attorney for your situation.
You aren’t required to hire an attorney to help you in your divorce case. However, you will be held to knowing the same standards and expected to generally follow the same court rules whether you have an attorney or not. This means that you are required to follow the court rules and procedure whether you actually know the rules or not. There is always a risk in going it alone. As such, one of the first steps in the process should be to talk to an attorney about your options and the court process as it may apply to your case. This is usually the focus of the first consultation.
Whether you do a free consultation or pay for the consultation, you will want to do some preparation before your consultation begins. Here, we discuss ways to prepare and make the most of your consultation time.
Format of the Consultation
Consultation with a Request for Documentation
How to prepare for the consultation depends on the format of the consultation. If it is a longer consultation (often set for at least an hour and sometimes longer), the attorney may ask you to bring in your financial documents and what you believe are the documents that support your position in the divorce case. This could include things like your tax returns, bank statements, and relevant text messages between you and your spouse. You may go over with the attorney not only the court process and the general strengths and weaknesses of your case but you may also review some of the documents that you have to support what you are claiming. For example, you may be requested to bring the following types of documents and evidence:
- Key financial records — bank statements, tax returns, property records, pension plans, insurance policies, loan info, school fees, and more.
- A detailed breakdown of your monthly expenses.
- Paystubs and proof of income.
- Documents that support your side of controverted issues — videos, diary entries, social media posts, emails detailing informal agreements you already made, text messages between the parties about the disputed issues.
Even in this longer format, you likely won’t “know” the outcome of your case, but your attorney will be able to give you a general idea of the process and what to expect. Consultations that include a document review are almost always a paid consultation format, as you will tend to spend a greater amount of time with the attorney. They will likely at least do a cursory review of your documents as you discuss your case.
Consultation without a Request for Documentation
While some attorneys do want to see your proofs, many attorneys don’t require you to bring your proofs and similar documentation for the first consultation. If there is something specific you’d like to ask about, bring that document. However, there is likely to be a much more comprehensive request for documentation after you retain the attorney. Most attorneys don’t require you to gather and bring all documents before you’ve decided who to retain as your counsel. Further, what you think is necessary documentation in your case might be quite different than what the attorney needs or finds useful.
That being said, you should have a general idea of what you have and what you want out of the case before the consultation. At the consultation stage, the attorney isn’t likely focused on specific numbers so much as the general issues and ballpark amounts. The attorney is likely to ask you the following questions. Your answers of yes or no to each of these questions likely result in further questioning on the topic as applicable to your case.
General Questions:
- What county do you reside in? (needed to know where to file the action)
- Have you (or your spouse) lived in Nebraska for at least a year? (required to file a divorce in Nebraska)
- Are you still living with your spouse?
- If not, how long have you been living separately and apart?
Alimony Questions:
- What are the ballpark earnings of each spouse?
- Is either party asking for alimony?
- Did either party put their career aside for the family?
- Is one spouse financially supporting the other spouse at this time?
Custody Questions:
- Are there children involved?
- If so, what are their ages?
- Is there an agreement regarding custody?
- If there are children and you are separated, what has been the general schedule since separation? How long has the schedule been in place?
- What are you wanting regarding custody and why?
Questions regarding Assets and Debts:
- Is there any real estate?
- If so, was the real estate purchased during the marriage?
- Is there a mortgage? Is the mortgage in both names?
- Who wants to keep the home, or do you want to sell the home?
- If you want to keep the home, can you afford the mortgage on your own, including if you have to refinance into your name? Can you qualify for refinancing in your name?
- How much equity is there in the home? (Ballpark value, if you don’t know, that is okay. The attorney can explain how this is generally calculated for divorce purposes).
- Are there vehicles? Do they have loans? Are both parties on the loans?
- What are the retirement accounts, if any? For example, does each party have a retirement account, or are there multiple accounts? Do you know a ballpark value of the accounts and have an idea of what types of accounts there are? (i.e. IRA, Roth IRA, 401(K), pension, etc.).
- What are the other bank accounts generally? What is a ballpark value?
- Any discussion so far about splitting the personal items/household furnishings? Any dispute there?
- What is a general ballpark for credit card debts and loans in each party’s name?
- What types of debts are involved? Are they jointly titled debts?
- Are there student loans?
- What of the debts and assets are from before the marriage?
- Were there any high-dollar gifts or inheritance during the marriage?
- What other assets or debts are there here besides those mentioned? This could be all kinds of things depending on the case. This could be boats or other vehicles. This could be a small business. This could be farm property. This could be consolidated debts. This could be a pending liability.
Issue Spotting
At the consultation, the attorney is trying to do a general assessment of the case. The attorney will likely be able to give you some feedback as to the strengths and weaknesses of your case. The attorney will likely talk with you about the sticking points in the case and what strategies to try to increase your odds of having those issues decided in your favor. The attorney will likely talk with you about the general process of the case, such as how the case starts and the most common procedural steps along the way.
For example, maybe you want sole custody, but the facts you describe more often lean the judges towards joint custody if the other parent asks for joint. If that is the case, the attorney may tell you that and why. The attorney might also suggest a general strategy to try to increase your chances of convincing the judge to grant you sole custody. The attorney would likely explain the steps of a divorce, including as generally apply to a contested custody case.
As another example, maybe you’d like to keep the house, but the mortgage is in the other party’s name,e and you can’t qualify for refinancing without a co-signer. In that situation, you might discuss whether it is realistic to even ask for the house. On the other hand, are there other assets and debts here that you could trade so that the mortgage could be paid off or paid down enough that you could qualify for refinancing? Is there a viable strategy to pay debts or increase earnings so that you would qualify for refinancing? At the consultation stage, you might not have a solution, but at least start to think about your real options and have some potential strategies to try to get what you want.
Reason for the divorce
While I didn’t mention it in the list above, the client often shares some reason as to why the parties are separating. It usually comes up as part of answering the other questions as part of the natural flow of the conversation. This way, the client can share what they feel most comfortable sharing. For example, if the other parent has issues with alcohol, it often comes up as part of the discussion regarding the custody or as part of the discussion regarding dividing certain assets or debts.
An Attorney’s Notes
An attorney’s notes after a consultation might look something like this:
15-year marriage. Separated for 6 months. Two children (12 and 10 years old). Have been doing a week on/week off joint custody schedule since we separated. Doesn’t think custody is disputed. Earnings are similar, and neither is requesting alimony. The parties divided many of their items and accounts upon separating, and the client believes it was fair. Home is disputed as both want to keep the home. Both agree that the person who does not get to keep the home should be granted a share of the equity in the home. Joint mortgage, so the person who keeps the home will need to refinance. The client can likely qualify for refinancing, and the opposing party probably can’t without a co-signer. Probably enough equity in the home to do a cash-out refinancing to pay out a share of equity if needed. Both have retirement and investment accounts. Will likely need to do some equalization there as accounts in the opposing’s name are greater than the value in the client’s name. The vehicle that the client drives is paid off. The vehicle that the opposing party drives has a loan in both parties’ names, and the opposing party probably can’t qualify for refinancing without a co-signer and has at least 3 years left on the joint loan. Both parties have student loans from before the marriage. No other real debt besides the mortgage and vehicle loan.
In a case like this, following the consultation, the client would likely have some idea that their request for the house might be more supported by the court than the other party’s request if the other party probably can’t refinance the loan into their name. The client would also likely start thinking about what to do about the vehicles so that the joint vehicle loan is resolved as part of the divorce. The client would likely have a general understanding of the process and next steps.
General Idea
At the consultation stage, usually you aren’t getting into the nitty gritty of trying to figure out the exact amount that you want to ask for. For consultation purposes, you might say that a retirement account is worth $100k for purposes of talking through the case in the initial consultation. This is even if the exact account value is not quite that.
This isn’t because the attorney is trying to rush you through the consultation. It just often doesn’t make sense to get into the precise details yet. For example, the parties might be arguing when to value the account, and the account balance swings between $95k and $105k depending on when you value the account. Unless your case is very simple, there are just likely too many moving pieces (and some pieces of information that are yet unknown) to try to figure out an exact amount in the consultation stage to be able to put together a settlement proposal after just the consultation. At the consultation stage, you are generally talking more about the big picture strategy and figuring out which attorney to retain. Often, the details aren’t all known and come later.
If custody is contested, a large part of the consultation may be discussing the factors related to custody in your case. Your attorney may likely talk you through the strengths and weaknesses of your case as they relate to custody. Depending on the facts, to some extent, you may also likely discuss whether your request regarding custody is likely to be granted.
For example, if you would like sole custody but haven’t talked to your children in several years, the attorney may likely talk to you about how that is not often granted. Unless your case includes factors about strong safety concerns regarding the other parent, your odds of being granted custody in this situation might be quite low. Instead, you might discuss a strategy of increasing your parenting time to later put yourself in a better position to request custody. If one parent is requesting joint physical custody, you might be asked some general questions about each party’s work schedule and if logistically, a joint custody schedule could work in your situation. You might discuss some common joint custody parenting time schedules that the judges tend to order,r to start thinking about what schedule might work for you.
If one parent wants to move the children out of state, there is a whole set of separate caselaw related to those cases, and you will likely have a separate discussion about those factors as they relate to your case.
Not a Therapy Session
Your attorney will likely want you to share a general idea as to why you are separating. Common reasons include infidelity, money issues, substance abuse issues, emotional or other abuse, or simply that you’ve just grown apart. However, the attorney is likely going to be focused on these facts as they relate to alimony, custody, or the separation of assets and debts. In most cases, it generally isn’t a great use of your time to focus your consultation on how the other party has done you wrong. Don’t try to use it as a therapy session.
For example, if your spouse was unfaithful, your attorney may want to know about how long it was occurring, how many separate times they’ve been unfaithful, and a general idea as to a ballpark of how much the spouse may be spending of the marital funds on these extramarital relationships. These might be factors important to alimony or in dividing the marital estate.
On the other hand, the attorney isn’t likely going to want to spend most of your session talking about just the affairs and how they’ve hurt you. While this may be a component of the conversation, it is likely just one piece of the bigger picture. The attorney will likely want a general overview as to what happened regarding the infidelity, but they often aren’t looking for the specific dates and times or a narrative of all the ways the party has hurt you, at least at the consultation stage. Thus, while this may be a component of your conversation, be careful not to use up your consultation time on the emotional aspects of the divorce, especially as your consultation is often set for a fixed time in the attorney’s calendar.
Your attorney may suggest that you speak to a therapist. There are a lot of emotions that come with ending your marriage. While your attorney may be sympathetic, your therapist is better trained to have strategies to help you handle the emotional aspect of your divorce. Save your attorney fees for spending on the legal aspects of your divorce.
What if You Don’t Know
If you don’t know something, that is okay. Especially in cases where the parties have not been upfront about sharing their finances, you may not know a lot about the overall financials and debts. Those things can be determined as part of the discovery process and it is okay if you don’t know these at the consultation stage. It is quite rare for a party to know all the necessary details needed for a settlement offer at this consultation stage. Share with the attorney what you do know and be upfront about what you don’t know or are not sure about.
Interview – Is the Attorney Right for Your Case?
The consultation isn’t just about information gathering and assessment of your case. It is also important to find the attorney who is the right fit for your case. Did the attorney seem competent and experienced in what information they were sharing with you? Did you feel comfortable asking your questions? Did they speak in a way that you understood their answers?
Personality matters. Did you feel the attorney was approachable? Were they too direct for your liking? Were they too indirect that you had a hard time figuring out what they were trying to convey? Did they seem like they cared? On the other hand, were they overly friendly and you fear they’ll spend too much of the time/your attorney fees chatting with everyone involved in the case.
Strategy matters. Did you agree with their general strategy on the case? If it is an uncontested matter, does the attorney seem like they will work well with others to accomplish things quickly and peacefully? On the other hand, are you seeking someone who has a more aggressive strategy, and you are willing to pay for the additional attorney fees and motions that may be necessary to be very aggressive and proactive to overall get what you want? Does the attorney seem like they have more than one mode (can be both aggressive or peaceable), or do they seem like they will be too aggressive or too timid for the specific case?
Experience matters. If your case is fairly straightforward, you may feel comfortable going with someone with less experience if the fees seem to be more reasonable. On the other hand, if your case is heavily contested or involves more complicated assets or debts, you will want to be confident that your attorney has experienced cases like yours (and maybe dozens or hundreds of cases like yours in the past). If your case has a special aspect (such as asking to move the children out of state or out of the country), you will want to ask about the attorney’s experience with that specific type of case.
Price matters. Let’s face it. Attorneys aren’t cheap. There is a balance in finding an attorney that is affordable but also has the experience you need and the personality that you can work with. The most expensive attorneys aren’t necessarily the best. Smaller firms tend to be more affordable than larger firms. Larger firms tend to have more support staff. Newer attorneys tend to be less experienced but have a less expensive hourly charge. The reality is that cost is one factor in choosing an attorney. The attorney should be upfront about the hourly cost and retainer.
Education about Your Case
After the consultation, you should likely have a better understanding of the court process and how the process may move forward in your case.
What you will likely know after the consultation:
- A general idea of the court process, such as filing the action, serving the other party, and a general overview of the most common other steps that will likely occur in your case.
- A general idea of the issues in your case and some idea on strategy. You will likely know what parts of your case are likely to be the sticking points and possible solutions.
- A general idea of the strengths and weaknesses of your case. Sometimes clients have a good understanding of this before speaking with an attorney, and sometimes not.
- A general feel for the attorney.
Special Information for Uncontested Cases and regarding Mediation
Maybe you are wondering Do I even need an attorney, or can I do this on my own? Maybe you are thinking that you want to make this as uncontested and easy as possible, and are concerned that bringing in attorneys will make the matter contested or more complicated. Maybe you are thinking of trying mediation without attorneys or another method to help resolve your case.
The consultation is especially important if you are feeling this way. If you are thinking this is something that you might be able to handle on your own, do yourself a favor and AT LEAST speak with an attorney before going it alone. Especially in short marriages with few assets and not much at stake to divide, you might decide that the process is something that you can handle on your own. You might decide that the risk of messing up is low enough to risk it since you don’t have much to protect. People do complete simple divorces without the assistance of an attorney with some frequency.
On the other hand, with some regularity, people do their divorces on their own and royally screw things up. They create costly mistakes when they decide to turn their divorce into a do-it-yourself project. Sometimes the mistakes are later fixable, and sometimes not. Even when fixable, you often spend more in attorney fees trying to fix things than you would have to do things correctly in the first place. If you can afford an attorney to help you with your divorce, it makes sense to hire one.
Attorneys handle uncontested cases all the time. Percentage-wise, relatively few cases go to trial. In Nebraska, your attorney can often help you resolve your case without ever entering a courtroom and often without the need to hire a professional mediator. If your case is uncontested or the parties are relatively amicable (at least for parties that are divorcing), the consultation can be very helpful in helping you find an attorney who can help you resolve your case quickly and with a relatively low attorney fee.
While mediation is helpful when a third party is needed to help the parties find the middle ground, it may be an unnecessary additional cost if the parties can find some consensus between the two of them. In fact, in Nebraska, if your attorney assists you with the paperwork and the process, you never have to set foot in a courtroom to finalize your divorce if both parties sign off on the paperwork in front of a notary. With few exceptions, judges in Nebraska now accept a hearing waiver, making the actual court hearing unnecessary to finalize your divorce if you both agree. Your divorce case still is a court case and goes through the court process, but you never have to go to court or attend a court hearing to end your marriage. Many attorneys will set lower rates for cases that appear to be uncontested and where the parties are mostly seeking assistance with the paperwork and process.
Other Low-Cost Options
Keep in mind that there may also be unbundled or limited scope work representation available. If you think you can do part of the case on your own (or can’t afford a full retainer at this time), you can ask at the consultation with the attorney if the attorney offers any unbundled or limited scope services. This generally means that the attorney handles just one part of your case for a set fee, making it more affordable by limiting the attorney’s time and scope of work on your case.
Decide What You’re Willing to Share — and Prepare to Be Honest
At the consultation stage, you may not have the want or the comfort level to share your most sensitive or private information, and that is completely normal and completely okay. That being said, you do need to give the attorney a heads-up as to the major issues or allegations, even if you aren’t sharing the details at the consultation stage.
For example, sometimes high net worth clients are private about their wealth or holdings. While the details of your financials will need to be shared with your attorney after being retained, you don’t need to disclose all at the consultation phase. You would want to give at least enough detail so that the attorney understands what factors may be at play. This would include a general idea of how much real estate to divide, such as whether rental properties are involved, and the names of any closely held businesses (to help make sure there is no conflict of interest). If you have any special or unusual assets or debts involved, you will also want to mention those at the consultation stage. While you won’t need to disclose everything about your financials at the consultation stage, you will want to make sure the attorney has a heads-up as to what is generally involved before being retained.
Another more common example is infidelity or allegations of abuse or substance abuse. If the other party will allege these as part of the divorce, you should mention this in the consultation. At the consultation stage, the attorney is unlikely to press you for details that you are uncomfortable sharing. However, you should share with the attorney these allegations in the consultation as it may affect the overall strategy involved.
Debt. A common reason that people divorce is issues related to money. If your marriage is ending and you are drowning in debt, the attorney needs to know that as part of the consultation. The attorney needs to have a general understanding of your financial situation as part of the consultation. If your debt surpasses the assets and income of the parties, then you need to share that. The attorney can’t properly plan and strategize if they don’t know what is involved.
Private or embarrassing info. Keep in mind that there is generally some level of animosity and bad acts that have occurred before a party decides to file for a divorce. Thus, judges and divorce attorneys are used to hearing about these things. Unfortunately, hearing about infidelity, abuse, substance use, and money problems is all part of the normal day for a divorce attorney or a judge who hears divorce cases. What you might find to be especially embarrassing or private info may be what your attorney hears about daily. Part of being an attorney is being a secret keeper, and they get used to hearing these types of facts and keeping these types of secrets early on in their careers. If you think there is something that may come up in your case and could impact the outcome, it is best to bring it up at the consultation stage, at least in a general way.
Can I Bring a Support Person?
Most of the time, the consultation is just between the attorney and the client. However, sometimes a person wants to bring a close friend or relative to the consultation. Generally, this should be avoided. What is stated in a consultation is generally protected under the attorney-client privilege. If a third party is present, then the privilege is often waived as a matter of law, and at least in theory, the third party could be subpoenaed to testify as to what they saw and heard. Thus, especially if there is any contested and confidential information being disclosed, only the attorney and the potential client should be present. Despite being warned of this, some clients do still prefer to have a support person present, or at least present while the attorney is generally explaining the process or discussing the uncontroverted parts of the case. Depending on the facts of your case, the attorney may allow a support person with these caveats and/or restrictions.
Can Both Parties Attend the Consultation?
In Nebraska, an attorney can only represent one party, even if it is an uncontested case. Thus, even if you are both in agreement on the terms, the attorney can only advise one party in a divorce case. That doesn’t mean you have to each hire an attorney if you don’t want to. It is somewhat common for just one person to hire the attorney who then handles all the paperwork and processes to finalize the divorce in an uncontested case. That being said, only the person who has retained the attorney is being consulted and given advice on the case. If the other spouse agrees with what the client spouse wants, then they also benefit from the attorney drafting the paperwork and handling the process from start to finish. However, if you are only using one attorney to handle the divorce, you want to be the spouse who has the attorney.
The attorney can’t tell the other party if they think they are getting a bad deal or of other steps they could take to protect themselves or their assets. The attorney can only advise and protect their client. Often, what the parties agree to is a good deal for both parties, and the unrepresented party benefits from a fair and final decree without having to get their attorney. That being said, sometimes the spouse with the attorney gets a far better deal than what a judge might order,r and the attorney can’t disclose such to the party that they don’t represent. If only one of you is getting an attorney, be the person who retains the attorney. The divorce decree can include a requirement that one party reimburse the other party for a specific amount of the attorney fees within a specific amount of time, if this is part of the agreement of the parties. Thus, the costs for the attorney fees can be shared even if only one person hired the attorney.
A note regarding mediation and a common misconception. You may be thinking that you heard that you are both present at mediation and that the mediator is an attorney. Isn’t that attorney representing us both? The answer is no. You will very likely even sign a mediation agreement that expressly states that the mediator does not represent either party. The mediator can’t advise either party. The mediator is to help you reach an agreement, even if the agreement that you reach in mediation is strongly in the other party’s favor. The mediator can’t even advise you that what you are agreeing to is very unfavorable to you. If you need legal advice as to what you are entitled to, you need to consult an attorney. That is not the mediator’s role. I’ve seen too many divorces where a party got stuck with a very unfavorable deal that they agreed to in mediation,n as they thought the mediator was advising them. Don’t make that often costly mistake.
Should You Pay for a Consultation?
Many attorneys offer some version of a free consultation. Others don’t, and any discussion with the attorney comes with a charge. This can give you a heads up on the mindset of the attorney and the policy of the firm. It is common for there to be at least a free phone consultation to get a general feeling for the case that can turn into a longer consultation or sit-down consultation if the case is something that the attorney is experienced with and interested in taking on.
Many in-person consultations, consultations set for a specific future date and time, and/or more than a chat, are going to come with a fee. If you are asked a few questions before setting up a paid consultation, be wary of getting your money back if the attorney can’t or won’t take your case after the consultation. Some attorneys spend a significant portion of their time and make a significant portion of their revenue from doing consultations without a willingness to take on most of the clients they consult with. If you are using the consultation as an interview, and not just information gathering, it can be a red flag if you aren’t asked at least some questions about the case before setting up a paid consultation. Nothing is more frustrating for a client than when they pay for a consultation to hire the attorney, only to be later told that the attorney doesn’t have the time to take on another case or doesn’t want to take the type of case that was set for the paid consultation.
Also, keep in mind that a paid consultation isn’t necessarily going to be longer or more thorough than a free consultation. Especially if your case is relatively uncontested or straightforward, the consultation may be relatively quick, whether it is free or paid.
Red Flags to Watch Out for
Not every lawyer is the right fit for your case. Keep an eye out for warning signs during your consultation:
- Difficulty in answering questions
- Overpromising unrealistic outcomes
- Discomfort with your questions about communication or billing
- Pressure to sign a retainer agreement on the spot
Your attorney should feel like someone you can trust and work with closely. If it doesn’t seem like the right fit, find an attorney who is.
Finally — Prepare to Think About It
With these preparatory steps, you’re nearly ready for that first consultation. This final tip is also one of the most important ones. Commit not to decide between hiring a divorce lawyer on the spot, right after finishing that consultation. That way, you’ll be able to make a clear-headed decision not dictated by what you feel about the lawyer’s approach and advice in the moment. In general, it may be best to do a couple of consultations or more before committing to the attorney that seems like the best fit. It will also help you discover if the attorney’s advice and strategy is on par (or better) than the others in the field.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child custody, child support case, or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.