20 Questions to ask a Divorce Attorney before retaining them

Here are some examples of questions you should consider asking a divorce attorney before retaining them. They are listed, loosely, in order of importance. The questions are designed to help make sure you hire an attorney who:

  • spends the majority, if not all, of their time practicing family law
  • has the skills to settle your case outside of court if possible as this is always the preferred conclusion
  • recognizes the value of experts in finance and mental health
  • can provide you reassurance you will be fairly billed and paid attention to during the emotional process of divorce
  1. What percentage of your practice is divorce?
  2. What kind of trial experience have you had in divorce?
  3. What percentage of your cases settle outside of court?
  4. Are you a certified specialist in family law?
  5. How many divorces did you work on last year?
  6. Do you typically engage experts such as forensic accountants, certified divorce financial analysts, child custody experts and vocational evaluators?
  7. Do you use experts as trial consultants to help you prepare case theory on specific issues?
  8. Do you typically try to settle cases?
  9. Are you trained in mediation?
  10. Do you provide unbundled legal services?
  11. How do you bill?
  12. Can you estimate what your fees will be?
  13. Other than attorney fees, are there any costs that I will need to pay?
  14. How much do you think these costs will be?
  15. Will an assistant do the work or are you going to work on it yourself?
  16. How will I be charged for your assistant’s work?
  17. Who is the contact person in your office?
  18. What can I do to keep my fees down?
  19. How do temporary spousal support and child support work?
  20. How long will it take to finish the divorce process?

Wellspring Divorce Advisors advocates all clients have legal representation during divorce. A large percentage of Americans do divorce without legal assistance but we believe he/she who represent themselves have a fool for a client. Please get legal advice. If you cant afford it find an attorney who provides unbundled services so you can just pay as you go without a large retainer.

What is financial discovery during divorce?

Financial discovery is the fact finding/document gathering part of the divorce process.  Financial discovery can be time consuming and may be the most expensive part of a divorce process for a wealthy family. Financial discovery will most likely happen over time. The amount of time depends on whether or not the parties are being cooperative.  It is a process, not an event, and requires ongoing document requests until all necessary information is gathered.

For the most part, discovery takes place outside the courtroom, with parties exchanging written information and sitting through face-to-face questioning sessions (called “depositions”). However, if the parties can’t agree on what should be handed over in discovery, a judge may have to resolve the dispute.

The kind of information that a party can force someone else to reveal — is generally very broad, though there are some limits. A party may ask for facts about the case, for the identity of others who may know something about the case, for documents relating to the case, and for inspection of physical objects or property connected to the dispute. Discovery can be used to seek information not only from the other party, but also from people and businesses that aren’t involved in the legal proceedings.

There are four types of formal tools that are frequently used in financial discovery during divorce. They are:

  • In a deposition, one party or that party’s lawyer conducts face-to-face questioning of the other party or a witness to the dispute. The person being questioned (the “deponent”) must answer under oath, and the answers are recorded for later use at trial. If the deponent cannot testify at trial, the questions and answers might be read to the jury as evidence. If the deponent does testify and gives different answers at trial from those he gave during the deposition, the questions and answers can be used to show the jury that the witness changed his story.
  • Requests for production of evidence.In a request for production of evidence, one party asks the other for physical evidence related to the dispute. Requests for production are usually used to gather pertinent documents, such as contracts, employment files, billing records, or documents related to real estate. However, these requests can also be used to inspect physical objects or property — for example, in a dispute about whether a contractor properly repaired a homeowner’s roof, the contractor’s lawyer might ask to have a roofing expert inspect the work.
  • Interrogatories are written questions one party sends to the other to be answered under oath. The answers can be used at trial in the same way as deposition answers — to challenge a party who changes her story later.
  • Requests for admission.In a request for admission, one party asks the other party to admit, under oath, that certain facts are true or certain documents are genuine. These requests are generally used to save time and to narrow the issues that have to be proved at trial.

We work with our clients to identify and collect the financial data pertinent to the divorce. From the original data gathering we evaluate any key financial concerns related to divorce – such as income and deductions, living expenses, assets, and liabilities. This process will likely tip us to other information we will need to request.

Wellspring Advisors work with the attorney to compile complete and comprehensive document requests, interrogatories and depositions to insure no stone goes unturned and the right questions are asked to help level the playing field. Good financial discovery will give you the peace of mind that no assets were hidden. Knowledge is power in the financial negotiations of divorce and formal discovery may be the only way to gain the knowledge you need.

What is “vesting” and how does it affect my divorce?

Vesting gives an employee rights to employer-provided assets over time, which gives the employee an incentive to perform well and remain with the company. The vesting schedule set up by the company determines when the employee acquires full ownership of the asset. Generally, non-forfeitable rights accrue based on how long the employee has worked there.

Read more: Vesting Definition | Investopedia http://www.investopedia.com/terms/v/vesting.asp#ixzz3kbDViTje
If an employee is vested it means that at least some of the retirement plan or stock options belongs to the employee and not the employer. This is the amount an employee is entitled to take when the employee leaves their employer. The portion that is vested comes from two sources:

  • Employee contributions vest immediately. When an employee leaves his employer, he or she is entitled to 100% of his or her contributions plus any earning on those contributions.
  • Employer contributions vest over a period of time. There are multiple types of vesting structures that can be adopted by a retirement or stock option plan. Graded vesting schedules allow for a portion of the funds to vest each year over a set number of years. Cliff vesting schedules provide a vesting of 100% of benefits after a set period of time.

How does vesting affect my asset division in divorce?

A benefit does not have to be vested to be considered an asset subject to division in your divorce but it does mean the funds may not be immediately available for you to spend. Wellspring Divorce Advisors will review your assets and make recommendations as to the true value of unvested assets and suggestions as to how to divide them. Unvested assets such as stock options, restricted stock units, pensions and other executive compensation must be handled carefully in legal agreements and long after the divorce is final. The agreements typically require the deferred division of these unvested assets meaning the employee spouse must maintain the benefits for their former spouse and the former spouse must be diligent in watching for vestings long after the divorce is finalized. Make sure you post-divorce financial advisor is competent in managing this ongoing entanglement with your former spouse

Are pension and other retirement plans considered marital assets and subject to division in divorce?

Yes, retirement plans are marital assets subject to division to the extent they were earned during the marriage. State laws differ on how to determine exactly what “earned during marriage” means so be sure to check with a local expert. In California the presumption is that any pension plans, 401K balances and other retirement accounts are community property and subject to division unless/until proven otherwise. If the retirement plan benefit was earned during marriage it will be divided.

In order to earn pension benefits a worker must be employed and participating in the plan.

In order to participate in a 401K plan the worker must make contributions to the plan by deferring wages from his or her regular paycheck.

Since both examples would require the participant to earn their benefit in one form or another, either time in the pension plan or contributions to the 401K, these earnings are considered community property or martial assets and will typically be divided 50/50 unless their are other extenuating circumstances or the parties agree otherwise.

Be careful though to make sure you are dividing apples with apples as retirement plans are pre-tax money where as other assets may have already been taxed. The difference in value between $100,000 pre-tax and $100,000 after tax could be $20,000 or even $50,000.

What if spousal support is payable for 6 years, but one spouse dies?

Spousal support must cease upon the death of the recipient in order for it to be considered spousal support for tax purposes and tax deductible to the payor. Spousal support can be paid after the death of the payor, typically from their estate in some form, but most settlement agreements and divorce decrees state that it will stop upon the death of either spouse.

We suggest the payor spouse be required to carry a life insurance policy to cover the lost cash flow for the payee spouse in the event of premature death. If this isn’t required in your settlement you should ask for it to be added. In the event the agreement can not be modified you should consider buying the policy on your former spouse yourself. You will have to pay for it but the peace of mind is worth the cost.

In order to determine the death benefit amount needed you would do a present value calculation on the stream of cash flow from the spousal support payments.

A $5,000 per month spousal support payment payable for 10 years would have a present value of $471,540. Call us if you need help determining the right amount of life insurance.

No matter the route you take for insuring the payments make sure you, the support recipient, are both the owner and beneficiary of the life insurance policy. Losing the cash flow from spousal support can have devastating affects on your ability to maintain your lifestyle.