In the course of almost a decade practicing family law in Virginia, I’ve been able to identify some of the best and worst practices in the field. Four times out of five, if I’m familiar with opposing counsel in a case of mine, I’ll know how the case will proceed. After a while you can identify the attorneys who have their clients’ best interests constantly in mind, and the ones who are lazy or (far worse) less than honest and have the tendency to “milk” a case when simple solutions exist. Luckily these attorneys make up only a narrow sliver of our practice area, but their behavior can give us all a bad name.
Attorneys matter, and who you and your spouse select will have an enormous impact on the way your divorce plays out, for better or worse. Here are three common traits of poor attorneys (whether intentional or merely due to apathy) to be mindful of when selecting your representation and proceeding with your family law matter in Virginia.
Fees Feasibility Fibs. Many clients ask me if the court will eventually award them fees, meaning that the judge will order their spouse to reimburse them for the costs of litigation, such as attorney’s fees, expert witness fees, court reporter fees, etc. The lazy or dishonest lawyer would tell you that you have a good chance at fees no matter the circumstance (thus enticing you into a legal battle that will generate more billable hours), when in reality you rarely do. If the income gap between you and your spouse is extreme, or if your spouse is caught violating a court order or filing frivolous pleadings, then you may very well get financial reimbursement, provided you can point the judge toward an account with funds to access. But these circumstances are narrow and rare, and in the vast majority of cases the court will not want to entertain an award of fees in either direction, regardless of marital fault. As a general rule, you shouldn’t avoid an opportunity for settlement in order to roll the dice on fees. The lowest form of attorney will press forward on fees even when all other issues are essentially resolved, prompting an angry judge to point out that more fees were unnecessarily generated, for the sole purpose of asking for fees. These pursuits are often wasteful of clients’ time and money.
Although the Virginia Code permits parties in family disputes to petition the court for fees, the wise attorney knows that just because you have the right to ask for something doesn’t mean that you should pursue it to your own detriment.
Spousal Support Surreptitiousness. Prediction of spousal support outcomes can be one of the most difficult areas of Virginia family law, due to inconsistent rulings from judge to judge and across jurisdictions. However, there are some guidelines that attorneys can use to prognosticate in this complex area of divorce law. For example, if the parties make similar incomes, spousal support will rarely be ordered. Typically, if one party makes more than double what the other does, then alimony becomes a legitimate factor in play. As for duration, one-half the length of the marriage is common, but longer marriages can yield alimony for an undefined duration. There are many exceptions to these principles, such as gross marital misconduct, imputation of income for the under-employed, etc. The lazy or dishonest attorney will tell a client that they have a chance at alimony, no matter the facts. While this is technically true, it does the client a disservice and puts her expectations in the wrong place to begin the process. Telling a client what they want to hear should never trump sharing hard truths. Perhaps she will ignore settlement overtures because they don’t include an alimony offer, or perhaps she will be more inclined to wait months for her day in court, only to be disappointed that a 10% chance (which her attorney portrayed as a coin-flip proposition) did not come to fruition.
The wise attorney will identify issues that are “likely losers” early on to save their clients time and money. Nobody wants to hear bad news, but you’d rather hear it from your attorney than from a judge several months (and several thousands of dollars) later.
Delayed Divorce Dealmaking. The lazy or dishonest attorney will take a relatively simple case file, worthy of a quick and obvious settlement, and throw it in a drawer (their own personal black hole) for months and perhaps even a year or more. Some attorneys will not respond to settlement offers until a trial date is staring them in the face. This can be due to challenges in finding the motivation to act without a consequential deadline (easier described as laziness) or a desire to keep a case open for months of billing instead of settling it in a week and seeing the client and their retainer walk out the door (dishonesty). In certain cases the discovery process isn’t necessary, and preliminary motions can prove to be a waste.
Not every divorce case should take a year to conclude, and the wise attorney will identify relatively simple cases that should settle quickly (where the outcome is a fairly known quantity) to allow the parties to move on with their lives without unnecessarily draining their bank accounts.
If you are facing a divorce, custody or other family law matter in Northern Virginia, the experienced family law attorneys at Livesay & Myers, P.C. can help. Contact us to schedule a consultation today.