My Holiday Wish for You

   Happy Holidays

Every year, I close my practice from the weekend before Christmas until January 2.  I spend that time with my family.  Daughter and I get mani/pedis and sometimes do something special, just the two of us.  Then we head over to Mom’s to help her with the final preparations for the holiday.  Then the hordes of family descend upon us and a kind of orchestrated chaos ensues.  I wouldn’t change it for the world.. It is my time to relax and recharge.  In past years, it has also been my time to hav eat least one freak out because things did not go as planned.  I had a vision in my mind of how things should be, and I held on to it, even in the face of a reality that looked quite different.  It made for a lot of tension for me - and the ones I love.

This year was different..  I decided that whatever happened. I couldn’t control most things, so I concentrated on what I could control.  I knew what jobs I had for the holiday festivities.  I did all of my holiday “jobs” ahead of time, so on the day our family got together, I could just enjoy my family and friends.  It was wonderful, not just for me, but for all those who came into contact with me.

Isn’t this so like the Trenches? When people decide to divorce, they have a vision in their heads.  It might be a vision of their lives after divorce.  It might be how the divorce process will go.  It might be how their children will react to the divorce.  Some of these visions are based in reality. Some of them are based on how they perceive their best friend’s/ sister’s/brother’s divorece went. Some of them might be based on how they perceive other people’s lives are after divorce, nor how their friends tell them their life is.  Some are based on what they perceive other people’s divorce settlements gave them.

Here’s what I have to say. Your divorce is your divorce.  It’s not the same as anyone else’s, nor is your life.  What’s more, most of those oither people’s lives are not even what they seem.  The passage of time makes the not so successful parts of the divorce process fade.  Some people exaggerate their divorce settlement, their post-divorce lives. Others outright lie about their lives and their settlement.  Why do you care about what someone else has?  I know this is a time where you feel unsure of yourself and your life, but trust yourself.  Figure out your goals, at least short term, and stick to them.  Let go of expectations and stop comparing yourself to others.  All those others aren’t living your life.  You are.  Pick the right people to guide you through the process and take their advice.  Listen to those friends who support you and not to those who try to make themselves feel better by telling you what you’re doing “wrong.”  Think about what you need to do and do it; and most importantly, don’t do something because others did it or because it matches some picture in your head of what your life should look like.  This is your divorce, hopefully your only one, so do it the way that works for you. Here in the Trenches.

Put. Down. That. Phone.

Put. Down. That. Phone.  I have an app on my phone that shows how much time I spent on screen each week.  The first time it posted, I thought it had to be a mistake.  I'm not one of those people who sit on their phone all the time, at meals, in the evening.....My use, unlike everyone else's, is miniscule. Right?  Well, if that's true, then everyone else is on their phone all the time.  When I reflected a bit, I realized that I was checking my screen while I was walking, during breaks in TV shows, as I moved between tasks at work, when I got up and before I went to bed.  In short, I WAS on my smartphone a lot.  Being a not so competitive person (cough, cough), I started to make it a game to see if I could reduce my screen time each week.  I have and I feel virtuous.  What else have I found?  Well, I enjoy my walks much more because I can hear the wind in the trees and the birds singing, and also because I focus more on the world around me.  I have more conversations with my significant other.  I miss less of the action on the TV shows I actually like.  Plus, I'm sleeping better.

Being present and communicating with your spouse or significant other are two of the most important things to do to preserve your relationship.  Article after article stresses the importance of these two actions to the health of a relationship.  Just yesterday, there was an article on solving the problems in your relationship on NBC News Better.  Not surprising, one of the top strategies was better communication and the other was being in tune with your partner's feelings (in other words, being present).  Here in the Trenches, the overwhelming majority of our clients say that their spouse doesn't communicate or pay attention to them.  These folks aren't talking about wine and roses - what they're talking about is listening when they talk and being present in the room.  That doesn't take a lot of time, but it does take effort.  We're so used to the immediate and the now that we forget that those things aren't what's really important.  What's important is building and continuing to build relationships with the people in the room with you, and not the ones on social media.  Leave the phone at home every once in a while.  Park it by the front door when you get home.  I won't make you do it all the time, but just for a few minutes every day.  Your relationship will thank you, and you may avoid being in the Trenches.

Go Heavy or Go Home?

When I travel to see Mom, I don't have access to a gym.  I asked my most fabulous personal trainer (who, coincidentally, is Daughter.  Yes, that's her in the picture) for a travel workout.  She devised a workout for me that uses no weight other than my body weight.  Do I need to tell you it kicked my butt worse than the gym workouts she devises for me (the answer is no if you are my FB friend and saw my post complaining about my sadistic personal trainer)?  What did this teach me?  First, that I am obviously not lifting heavy enough in my gym workouts.  Second, and most importantly, that sometimes less is more.

It is that second lesson that reminds me of all of you in the Trenches.  A lot of people think that when they find themselves in the Trenches, they need an attorney with lots of extra firepower.  By "extra firepower," I mean a firm with an impressive name, with lots of attorneys, and in which their attorney has associate attorneys helping them along with a fleet of paralegals and assistants.  Some folks think bigger and impressive is better than a solo attorney or someone in a small firm.  It's kind of like how impressive it looks when Daughter lifts those big heavy weights on her website (and she is really impressive - the picture at the top of this post is her squatting @135lbs), versus how I look doing the same exercise without added weight.  Does it mean that Daughter is getting a better workout than me?  Not any more than it means that the folks who hire those big impressive firms are getting better representation.

As we head into the holidays, some folks will decide that this holiday will be their last one with their spouse.  Those folks will start to look for an attorney to help them.  That makes the message of this post extremely timely.  When looking for a family law attorney, fit and philosophy are more important than anything else (except, of course, competence, which is not always a given).  When you are in the Trenches, your life is laid bare before your attorney.  You want to feel comfortable sharing your deepest, darkest secrets with that person.  You want to feel confident that they have your back.  You want to know they will give you advice you can live with.  You want to know that they will approach your case in a way that is comfortable for you. You want to feel comfortable raising concerns and asking questions.  You want to be confident in their answers.  This is your life, and you will have to live it long after the attorney has moved on to other clients.  Bigger is not necessarily better. More is not always more. One size does not fit all.  Here in the Trenches.

There's No Such Thing as a Free Lunch

Choosing a family law attorney is kind of like buying skincare products.  I was reminded of this fact when I recently replenished the products for my own skincare regimen.  I really don't like spending a lot on skincare.  I read the magazines where they rate products and they say this or that certain drugstore product is really good.  I think to myself that if those products are so good, maybe I should use them instead of my normal regiment.  Periodically, I try that.  Here's what happens. 

I open the jar of the drugstore brand, which is less than half the cost of my normal cream.  The cream smells good.  It feels creamy.  I put it on my face.  I put more of it on my face. It seems to take more cream to make my skin feel hydrated.  Over time, my skin doesn't look equally hydrated (and rejuvenated - let's not kid ourselves if we are of a certain age).  I end up with skin that doesn't look as good, and because I am using more product, I don't think I'm actually saving money.  In fact, horror of horrors, I think I'm spending more, just not all at once.

I'll never forget the first time I bought more expensive skincare.  The salesperson gave me one of those little sample packets with purchase, you know, the ones that are about the same size as a sweetener packet.  I thought that packet would last one application, there was so little in it.  It lasted three.  My jars of expensive cream?  They last three times as long as the drugstore brand, plus my skin looks better.  Really, I end up saving money (especially as I get older and need the creams more.).  When I was younger, probably not so much because my skin had fewer issues.  Have there been times when I just couldn't afford my more expensive skincare?  Sure, and on those occasions, I picked the best less expensive version I could find. 

How is that like choosing a family law attorney?  Well, people call my office all the time asking if I do a free consultation.  They hear my fee for an initial meeting ($600 for up to two hours) and my hourly rate ($375 in Frederick and $400 in Montgomery) and gasp.  Some of them sputter that Attorney X down the street gives a free consultation and only charges $150 an hour.  Some of those people go down the street.  I have cases against those attorneys.  Those cases end up costing Attorney X's clients significantly more than mine, on average.  Why?  They are not as knowledgeable.  They are not as efficient at doing what needs to be done as I.

Just so we're clear, the more expensive attorney is not necessarily better.  There are a number of attorneys in town who charge as much or more than I who are nevertheless terrible attorneys.  Then again, I have bought an expensive face cream or two in my life that did not do what it said it would do, and that left my skin worse than the drugstore cream.  I'm not saying to choose an attorney on cost alone - there are a LOT of really good attorneys who have lower rates than mine, perhaps because they haven't been in practice long, or because they chose for whatever reason to keep their rate low.  Price alone doesn't determine quality, but it can.

What I am saying is that when you choose a family law attorney, don't do it on hourly rate or cost alone because sometimes more expensive is cheaper and sometimes cheaper is more expensive.  I know you don't have a lot of money.  Here's what I also know:  an experienced family law attorney knows how much a case will probably cost (within a range), what you will need to invest in and what you won't, and they can help you budget your funds.  They've probably developed systems to streamline the process of the case so they're more efficient.  They've seen it before and developed a strategy for your problem.  They have a good or great relationship and reputation with other attorneys and the court. Maybe they can help you find the funds for the representation.  If they don't think you can afford them, they'll tell you and usually can recommend someone who can help you at a lower price whose ability they trust (I've gotten some of my favorite clients that way and I hope I've done the same for others).  My point is not to tell you to hire the most expensive attorney.  My point is to understand that sometimes cheaper is more expensive.  Do not let cost be your only guide.  Assess for yourself whether that cheaper attorney is really going to a) advise you well; b)be able to represent you competently and c)save you money.  Do the same for the more expensive one.  Don't shop on cost alone.  Here in the Trenches.

Fashion Sense = Divorce Sense?

I enjoy fashion.  I like to look good and make sure my look doesn't become dated.  As I've gotten older, I've had more trouble keeping up with trends and also looking age appropriate (Hey, it's not so easy, look around you at how many people either don't try to do it or who fail miserably at it).  Sure, I read fashion magazines and blogs, but that doesn't always help me translate into looks for me.  Plus, like everyone else, I get comfortable with what I have and am hesitant even to try something new.  I also become overwhelmed by the number of items of clothing out there and have less and less patience to cull through them to find something a bit different.  What to do?  Well, I do two things.  First, I subscribe to an online styling company.  In my case, it's StitchFix.  They deliver to me every quarter.  My first stylist didn't get me, but my second, Sarah, sure did.  She sent me things I loved, but which I would never have found or never have picked to try.  Second, I shop once or twice a year with Daughter.  She has a good eye, attends to trends, and has a vested interest in my not looking ridiculous (would you want to be seen with your mother wearing the too tight, too short skirt?  Didn't think so).  Yes, I go shopping on occasion with friends, but I let none of their opinions override my internal gauge of what I would wear and what I wouldn't.  Only Daughter and Sarah get the honor of my trusting them enough to try things outside my comfort zone. 

I realize that when you're in the Trenches, you have far more important things on which to concentrate than your fashion sense.  There is, however, a lot we can learn about the Trenches while shopping.  If I had to categorize most people in the Trenches in terms of shopping and style, I would put them in two categories.  In the first category are the people who never update their look.  It doesn't matter the look, they will continue to buy the same types of clothing.  You've seen those folks: the woman who's gained significant weight yet still wears skin tight pants or who's lost weight and continues to wear the clothes that fit her when she was heavy; the man who still dresses like he's in college even though he's 60; the people who dye their hair and their facial hair to the same color they had 30 years ago.  In the second category are the people who constantly change their style depending on what other people tell them to do.  They have no internal compass for determining whose opinion to trust and whose to discard, so they listen to everybody.  These are the folks who wear every trend in the world at the same time, whose look is not always age-appropriate, and whose clothes, although updated, don't flatter them.  We see plenty of both groups in the Trenches.

The first group suffers from a fear of change.  They are often the folks whose spouses leave them and they can't understand why.  For them, their marriage was the same as it always was until the day their spouse announced they were leaving.  Now that change is thrust upon them, they have a hard time dealing with it.  For these folks, it's like taking them into a mall and telling them they can't buy the clothes they've always bought; they panic or at least suffer severe anxiety.

The second group suffers from information overload.  They are the folks who ask all of their friends for advice and read everything about divorce on the internet, and then not asking themselves whether the advice makes sense.  Many times, they think it all makes sense, and that confuses them even more.  This group has as many leavers as leavees.  Either way, they are overwhelmed by the decisions they have to make and as a result, many of their decisions change frequently as they hear from more people during the course of their divorce.

Both groups need a Daughter and a Sarah to help them as they progress through the Trenches.  Who are those when we talk about the Trenches?  They are a professional with expertise in family law to guide and advise them; for most people, that professional is a family law attorney.  They are also a friend or family member (or therapist) whose opinion they trust and who can tell them the hard truths.  It's still OK to talk about divorce or the end of their marriage with other friends or family, but they need to be confident enough of the advice of their professional and their one trusted person to assess what other people tell them against what they're told by their two trusted advisors.  If they find they trust their friends and family more than their trusted advisors, then they have the wrong advisors.  If they have the right advisors and can't assess what the chorus of thousands is telling them, then they need to check in with their advisors - just like I do when I'm thinking about trying a new trend.  Here in the Trenches.

Self Care in Uncertain Times

I deal daily with anger, fear, hatred, and loss here in the Trenches.  Everyone who works in the Trenches does the same.  We try very hard not to have to deal very often with those feelings in others when we leave the Trenches and go home to our personal lives.  Unfortunately, no matter your politics, most Americans agree that we are not in a period in which we treat each other with kindness, tolerance, and love. 

Those of us who toil here in the Trenches are not immune to feeling the same emotions as our clients.  We are not always calm, cool and collected.  Here is some advice we give our clients:

• Write the nasty responsive email.  Don't put the full email address of the recipient on the email.  Be as awful as you want.  Get it out.  Then, don't send it.  Delete it.  It sounds like a waste of time, but trust me, you'll feel better.
• Change your assumption.  You know your spouse is doing whatever they're doing just to annoy you.  You know they are just being evil.  What if they're not?  What if they're doing the best they can?  What if they don't have all the information?  What if they're annoyed because they're stressed or hurt or overwhelmed?  You have a choice as to how you view their motives.  It's like that person who cuts you off in traffic; do you feel better or worse when you think they did it on purpose rather than they're just being clueless?
• Stop and think about why you're angry.  Is it really what someone has done? Or, is it your feeling powerless or overwhelmed?
• Take a moment and do something else.  Go for a walk, a run, journal, cook, pet your dog.
• Focus on what you really need to do.  Do you need to respond to that crack about your mother, or can you just answer the underlying question about the children's activities?  Do you even need to answer that email?
• Take care of yourself.  It's the little things.  I had my car detailed last week for the first time ever.  Now I can't understand why I waited so long.  The shiny surfaces and clean car smell had me smiling for days, every time I got in the car.  Read a book for a few minutes.  Visit with friends.

I'm going to go a step further and say that it's easy in uncertain and angry times to lose sight of our humanity.  It's easy not to take care of others.  We tend to look for what's wrong with people instead of what's right.  When we're in the Trenches, so much of what we do is focus on other's faults, and become polarized.  It dehumanizes us.  I am going recommend You Matter Marathon.  These are their mission and values from their website:

Mission Statement

The YMM is a global initiative that creates positive connections between individuals and within communities.

Vision Statement Draft

We envision a world where individuals naturally and regularly affirm the significance/value of the “other.”

Core Beliefs

We believe that the world would be a more peaceful and joyful place if every person knew they mattered.

We believe that the path to a more peaceful and joyful world begins with daily acts of connecting in positive and sincere ways that honor our common humanity.

We believe that one way to affirm our own significance is to regularly affirm the significance of others.

If you sign up on their website, they will send you 30 cards that say simply "You Matter," in return for your promise to hand out 29 of them in the month of November.  I signed up and I already feel better and more positive thinking about to which people I am going to give some of the cards.  Sometimes "self-care" is helping others feel better about themselves.  I challenge you all to participate in the You Matter Marathon - no running required.  Here in the Trenches.

Grief and Loss in the Trenches

As I continue to struggle with the loss of my beloved Danny, I have been thinking more about loss in general, and loss here in the Trenches.  You might think that the loss of my dog to death is very different than my clients' losses, but it's not.  Loss is loss, as simple as that.  So, it was a bit of a surprise when I opened my Washington Post today and found an article by Claire Bidwell Smith talking about the relationship between grief and anxiety.    In fact, she believes that anxiety/fear is the missing stage of grief in Dr. Kubler-Ross's five stages of grief:   denial, anger, bargaining, depression, acceptance.  Here's the deal.  When we suffer a loss, whether due to death or divorce, our entire vision of our lives is suddenly drawn into question.  All of the security that we so carefully built for our future is either suddenly gone, or we start to question the point of making all of these plans when death or loss can take them away in a moment.  We are suddenly confronted with how fragile everything in our lives is and how precarious our futures.  We realize how short life really is.  It's scary, and we become anxious.

All of these realizations wouldn't be so bad if we had the time and space to deal with our loss.   Our society doesn't really give us that luxury.  After a few weeks or maybe a month or so of allowing us to grieve, we're expected to get over it and move on with our lives.  Our friends and family no longer want to listen to us talk about our loss, so we bottle it up and soldier on.  We're expected to pick up the pieces and move on.  Too bad that's not how the human psyche works.  The stages of grief aren't things on a checklist.  They don't occur on a timetable.  They evolve.  You can't rush them.  If you realize that most people don't even fully realize the extent of their loss until weeks after the event, then you understand that working through the stages of grief takes time and effort, sometimes years. It's not something you ever get over, but rather something you learn to live with. Sudden loss is even worse because there is no time to prepare in advance to actually suffer the loss.

Here in the Trenches, there are a lot of folks for whom their divorce is a complete shock.  There are others who have thought about it for years, but have never internalized the loss they would feel.  There are still others who thought about it for years, thought they dealt with their emotions and then are surprised that they feel so sad, overwhelmed, anxious.  It's all loss, and it's all raw.  I have yet to have a client who hasn't felt some sense of loss at the end of their marriage.  I regularly suggest clients get into therapy.  Many do; many don't.  Some think I'm saying they're crazy;I'm not.  What I am saying is that grief is complicated and loss brings all kinds of uncomfortable feelings to the surface.  Those feelings, if we don't deal with them, can make us panic, paralyze us, create anxiety.  We can't really move on until we face our grief and work through it.  Me?  Well, I still think I see Danny all over the house and the office.  I miss how his life ordered my days, and how we cuddled at night.  His death also dredges up memories of my father's death 5 years ago, and I'm dealing with pieces of that grief too.  It's raw and it's painful.  It's also human.  Thank goodness for my therapist.  What about you?  Are you dealing with the grief of your loss?  It's not a quick fix.  Give yourself time and space and be kind to yourself.  Here in the Trenches.

Does Seeing Behind the Curtain Ruin the Experience?

For my birthday this year, I wanted to take the Backstage Magic Tour at DisneyWorld.  For those of you who are not Disney nerds, it is a 7 hour tour of the “backstage” at DisneyWorld. We got to see the before hours mechanical and engineering checks at The American Experience at Epcot, along with a backstage look at the mechanism that runs the show there.  We went to costuming, where they design and create the costumes used in the shows and on characters at The World.  We drove by the warehouse where they maintain and store their holiday decorations.  We went to one of the multiple laundries, this one for the deluxe resorts (which was beyond cool, by the way) .  We went to the engineering and mechanical shop where they maintain the ride vehicles, design new animatronics and build them.  We went down into the utilidoors at Magic Kingdom, which are the underground series of tunnels by which cast members traverse the park, take breaks and the like.  It was comprehensive....and fun.  We saw how The World is a self contained municipality, with banks, medical facilities, day care, power plants, fire and rescue.   There is so much and so many details that go into making a Disney experience that it would make your head spin.  I know, many of you are probably thinking that taking a tour like that would ruin the magic of Disney.  It doesn’t.  Actually, knowing what goes into every part of the Disney experience enhances it and makes me appreciate what is on stage even more.  Not everyone feels this way, so not everyone takes this tour, but Disney is happy to let you know how they do it.

Some lawyers in the Trenches worry that if clients know what goes into drafting a pleading, preparing for trial, or that there are Maryland State court forms online for things like filing for an uncontested divorce, filing for child support or filing their initial pleading for divorce or custody, they will lose a client.  I find just the opposite.  I often tell a client that they could use a court form if all they need is an uncontested divorce; I help them fill it out if they want.  I tell them what to expect at a hearing and how it will go and what they need. Sure, I might earn less on that case, but I have a happy client who will come back to me if they have a need and refer friends and family my way (and they have).  Some of those folks end up doing their own divorce and are thrilled to be walked through the process.  Some folks realize that they’d rather not do it themselves but stay involved in the strategizing and planning of their case.  Still others would rather just have their lawyers do everything.  Sometimes, seeing how the process works “backstage” makes a client appreciate the effort even more and see the magic in what we do.  Here in the Trenches.

How to Save Your Marriage

1.  Stop looking for the fairy tale.  It's a fairy tale, not reality.  There is no prince on the white charger; there is no perfect soulmate; it's not sunshine every day.  Stop believing it exists.  That doesn't mean your marriage can't be wonderful.  It just means to stop looking for perfection.  Life is not perfect; there are dirty diapers, sleepless nights, and job stresses, all of which affect your ability to be fully present for your partner at any one time.  Accept the temporariness of the drought, but don't let it become the norm.  Maintaining a good marriage is hard work, and that's how you make the fairy tale come true. Think about the difference between Fiona in Shrek and Snow White.

2.  Smile.  I mean that figuratively and literally.  Studies have shown that athletes who smile during exertion actually feel less fatigue and pain than those who don't and perform better.  I have a friend, who may or may not recognize herself in this post, who constantly posts on Facebook how much she loves and adores her husband and her children.  By constantly, I mean almost daily and sometimes multiple times a day.  I love it.  She's smiling to the world, and you can bet her family knows it.  She's also smiling to herself and reminding herself to be grateful for what she has, and not allowing what is wrong to overwhelm her.  Have they had rough times? Yup.  You'd never know it by her posts because that's not their purpose.  Their purpose is to keep her in a mindset of gratitude.  This is not easy.  When things go wrong, when we're in pain, the last thing we want to do is smile.  When I'm at the end of a race and my legs feel like rubber and my lungs burn, the last thing I want to do is smile; yet research shows that is exactly the time I should be doing it.  So should you if you care about your relationships.

3.  Let's look a little more deeply at my friend in #2.  I look at her because I know you're thinking that her case is different because her husband is really a good guy at heart and her children are wonderful people, but your spouse is a jerk and it won't help.  Wrong.  Smiles are contagious.  With my friend,  I smile when I read her posts, as does everyone I know who is also her Facebook friend.  Try smiling (and no, I don't mean one of those maniacal smiles crazy ax murderers do, but a real full face smile).  Make an effort to smile more.  Two things will happen,  You will feel happier, and those around you will smile back.  Even your "jerk" spouse.  It won't happen right away, and that's the problem; you have to keep it up over time with no immediate results.  Do it anyway, and I bet eventually, the world smiles back at you.

4.  Think back with me for a minute.  Did you have a best friend when you were a child?  Is that person still your best friend today? Are you even in touch with them?  Did you have a favorite cousin when you were a child?  I bet you are still in touch with them, and they're probably still someone you like.  What's the difference?  The difference is choice.  You had a choice whether you remained friends, whether you put the effort into the relationship with your best friend.  You didn't have that choice with your cousin.  Your cousin was going to be at all the family get-togethers.  You were going to see them no matter what.  You had a choice with your cousin too - you could either maintain the relationship or have a miserable time at family get-togethers.  You put the effort in because not having a relationship wasn't a realistic choice.  You had to find interests in common, ask about their lives and be an active participant in the relationship.  You had to talk to work out your differences because you knew you had to see them again.  Of course, your favorite cousin could be your least favorite cousin now, and that is a whole different set of choices.  Marriage is more like your cousin than your childhood friend, and if you think of it that way, it will be better.  You committed to this relationship by moving in together or getting married; it's not like having your best friend down the street or in school.  You made a choice to commit and sometimes we forget that.

5.  Don't sweat the small stuff, and it's all small stuff.  We all get so caught up in the daily act of living that we sometimes forget this.  The little things pile on top of each other:  he leaves the toilet seat cover down at night, she puts the toilet paper roll on the wrong way (yup, that's me.  I never knew there was a "right" way), he takes a week to completely finish the laundry, she leaves a mess in the kitchen, he leaves piles of paper all over the house, she interrupts constantly.  That's just a few of mine.  I could go on forever.  What happens is that going on forever is the opposite of what we're talking about in #2.  It's like frowning all the time.  For most of the people I see in the Trenches, the small stuff adds up like a dripping faucet gets on your nerves.  They add to each other until they lost sight of what brought them together in the first place.  Sometimes the little stuff is big stuff, like drug addiction or alcoholism.  It's still small stuff.  The big stuff is what brought you together in the first place, and that is what you need to keep reminding yourself.  Sometimes it takes a tragedy to shake things up and remember what's important.  Focusing on the small stuff and constantly criticizing is the opposite of #2; it puts you in a mindset of scarcity and resentment which just feeds on itself.  

6.  Communicate with your spouse.  No, I don't mean discuss politics (which right now is an absolute taboo in my home) or current affairs.  I mean how you feel.  Are you feeling worried, angry, anxious, happy, excited?  What are you concerned about?  Do you need help with a solution or just someone to listen (folks have to be told this, otherwise we all jump into problem-solving mode)?  What do you need - a hug, help with a chore?  Sometimes communication is non-verbal; it's touching their shoulder, holding their hand, bringing them their favorite chocolate, going together to something you have to go to but neither of you wants.   Maybe you need help communicating and a therapist works with you.  The folks in my office stopped communicating years before they walked through my door;  it is not unusual for someone to say during their time in the Trenches that they didn't know that's what bothered their spouse or that's what their spouse wanted, and if only they did.....

7.  Talk about the money.  Where it is, what it is and how to spend it.  What is important to each of you about money?  Don't hide what you're buying or saving.  We all come to relationships with our own attitudes about money that were taught to us by our families.  Money issues carry a lot of baggage and shame.  That's why you need to talk about them.   Again, having this conversation is hard, and most people won't do it.  Instead, they will walk around the elephant in the room until their spouse pulls up in the new Mercedes that they can't afford or there isn't enough money to send their kids to college.  Have an in-depth conversation now and often.  With a reluctant spouse, start small by expressing simply how you feel about an upcoming purchase or the lack of savings.  By expressing, I don't mean accusing; I mean saying I'm really anxious about how we're going to afford the upcoming car repair.  Baby steps until you can get to the bigger issues.

I know, you're thinking that these are all fine words (at least I hope you are), but my spouse will never do this.  They will never change.  Sorry, but they constantly change, just like you.  People constantly evolve and change, which is why maintaining a relationship is hard.  I'm not the same person I was 20 years ago and neither is my honey.  We each have different interests and different outlooks on life than we did then.  I know the same is true for you.  The point here is not to change them, but to change you.  You have no control over some other adult's actions; all you can do is change your response to them.  How you choose to respond determines not only how you view what happens, but also your level of contentment with what you have.  Whether your spouse changes or not is beside the point; the point is rewriting your inner narrative.  This is all hard work.  Some people aren't up to it.  Some people choose not to do it. I can't guarantee a saved marriage, but what I do know is that if you do the things in this post, you will have your best shot.  Here in the Trenches.

R.I.P. Danny the Office/Therapy Dog and How His Death Can Help You Decide

We had to euthanize our beloved Danny on Saturday.  For those of you who worked with us in the Trenches, you knew him as the Office Dog.  He was always on hand to request his belly rubbed just when you were about to lose it.  He always knew when you needed a friend to cuddle, even if you weren't aware of it until just that moment.  He was a brilliant medical diagnostician, and could often tell when someone had a physical ailment before they or the tests knew it.  He was a friend magnet, with lots of dogs and their owners to call his buddies, and even some folks without dogs.  He got you out of the house and office and moving every day, whether you liked it or not.  Most of all, he was my best friend.  Because he was my best friend, I had to be his today when he needed me.  My heart is broken into a million pieces, but it was the right decision for him.

Danny would like to leave you with a learning moment here in the Trenches. (Of course he would - he's my dog, after all).  When an animal is ill, sometimes it's hard to know what to do.  How ill are they?  They can't tell you unless they cry or scream in pain.  Even then, it's hard to know if the pain is episodic, long-term or permanent.  If they don't scream, are they in pain?  Are they unhappy?  You look for signs - are they breathing heavily, are they favoring a limb, are they not eating?  Sometimes the signs are clear, like they were with my Danny, and sometimes they're just not, like with his girlfriend Sam.  Making the decision to euthanize them is final, so you want to be sure.  You try everything - you change their food, give them more love, change their walks, give them supplements, take them to specialists.  Sometimes, you just can't know for sure, and you agonize, and maybe they suffer too long.  Sometimes, when they suffer too long, it's not about them, it's about you not being ready for them to leave you.

That's kind of like marriages.  Most people marry thinking marriage is forever.  No one enters a marriage thinking it's going to end.  For some people, it is forever.  For others, it's not, and more importantly, it shouldn't be.  When a marriage starts to go wrong, it feels wrong.  For many marriages, when it starts to feel wrong, it's hard to tell if it's a bump in the road which most marriages go through or a serious derailment.  You wait and observe.  Maybe you try and do some things differently; add some date nights, go to counseling.  Sometimes it's a malaise; sometimes it's an affair or domestic violence.  Is this a one-time thing, or is it a pattern?  For most of us, we wait too long, because divorce and dividing a family is permanent (usually), and we don't want to be premature.  From Danny's point of view, you're looking at it wrong.  Stop kidding yourself and do the hard work. 

Most people who Danny saw come into the Trenches knew the marriage was over long before they walked in our door, sometimes decades before.  They agonized over the marriage itself.  They worried about the effect on the children.  They were concerned about how their spouse would survive without them.  What most of them didn't do was look deep inside themselves.  They didn't look at how they added to the marital dynamic.  They didn't examine what was acceptable to them.  They didn't ponder what they needed to move on. They didn't formulate a realistic vision of what life would look like after divorce.  Instead, they focused on keeping the marriage together as long as they could - because they weren't ready to leave, not because they made a decision to stay. 

Even though we weren't ready for Danny to leave us so soon and so suddenly, we knew it wasn't about us.  It was about him.  We gathered the facts, did the emotional work and made the right decision.  With Sam, we agonized, and I see now that was far more about us than her and in the end, it was worse for all of us.  What Danny the Office Dog would want you to learn is that you can't make the hard decisions until you do your own internal work.  Yes, it's hard.  Yes, it may require working with a therapist.  And it might require gathering information from multiple sources - a lawyer and/or an accountant.  Do it anyway.  For Danny, if not for yourself.  Here in the Trenches.

Why Do People Not Prepare for Disaster? How You Can Be Different

Once again, a hurricane bore down on the United States.  Once again, people in the affected areas were told to evacuate.  Once again, hundreds did not, leaving them stranded in their houses as the water rose, or worse, dead.  Why is it that this keeps happening? It's not because people don't believe that the storm will hit (for the most part); it's not that they think the storm will be less severe than it's predicted to be, because surveys show most people believe the storm will be worse than forecast.  The reason is cognitive bias.  We know the storm will be bad, but we don't think it will affect us.  None of our neighbors are preparing, so we don't need to.  We forget what it was like the last time (which is also another explanation about why women have more than one child after enduring labor and delivery the first time). We focus on the immediate discomfort and decide to put it off.  We think if we do one or two things, we have done enough. 

In truth, our minds play tricks on us all the time, not just in the face of a natural disaster.  When was the last time you checked to make sure your long-term disability policy covered enough of your income? Have you updated your homeowner's insurance policy to account for the increase in the value of the house and its contents?  Probably not.  In fact, you probably even forgot you had those things except when the renewal notices arrive.

I'm sure you aren't surprised that Here in the Trenches, we come across folks who are unprepared all the time.  We have clients who saw the signs that their spouse was cheating or that their spouse was mishandling the finances, and ignored them.  We have clients who have been horribly abused, physically and emotionally, who downplay the severity.  We have clients who, when faced with overwhelming evidence that their spouse is taking a scorched earth strategy, still believe in an amicable resolution.  I'm not talking about stupid people, yet these folks fight us tooth and nail when we try to get them to see what's obvious to us and to take action.  Then, when like the hurricane's victims, they are left high and dry,  they can't understand how it happened, and somehow it's everyone else's fault.

I know facing reality is hard.  I'm human just like everyone else and underplay things that go wrong.  I'm not always the fastest at acting to correct the things that should be corrected.  I am, however, pretty darn good at protecting myself and I'm really good at protecting my clients - if they let me.
In that light, I have a list of things you can do to protect yourself, even if disaster never strikes.  If you do just one of these things, you will better off than the majority of the people I see.  If you do them all, then you're golden.  Notice, the list is short.

1.  Know what you own, where it is and what you owe.  You don't have to make a formal spreadsheet but have a good idea of what it is and where the paperwork is (making a copy and keeping it in one place is ideal).  I can't tell you the number of spouses who no clue - and that hurts you if you find yourself Here in the Trenches, or if you find yourself widowed.

2.  Apply for credit in your own name.  I don't care if it's a store credit card with a $200 limit.  Have something.  I had a friend whose mother became widowed and even though she had significant assets, she had a hard time refinancing the house and buying a car because she had no credit in her name at all. 

3.  Develop a marketable skill.  What if my friend's mother had no assets?  She was a housewife for 30 years and had no marketable skills.  She would have starved.  While you are married and have at least one other source of income is the time to take that word processing class, get a certification, renew your existing certification. Don't leave yourself dependent on the good health and employability of somebody else.  Even if you get alimony, that all goes away if the payor gets hit by a bus or dies.

Do one of the above and you're ahead of the pack.  Do two, and you're increasing your lead.  Do all three, and you win the race.  Here in the Trenches.

A Deposition is Not a Conversation, and Other Lessons of Life in the Trenches

When you are in the Trenches, you have the opportunity to learn a lot of lessons.  Those of us who work in the Trenches want you to learn how to co-parent effectively with your soon-to-be ex, to manage your finances, to create a life into the future, and to plan for your old age.  Unfortunately, there are also a lot of lessons we don't want you to learn the hard way.  Today's blog post talks about 5 of them.

1.  A deposition is not a conversation.  A deposition is when the other side's attorney sits opposite you at a table and asks you questions, the answers to which are made under penalty of perjury and recorded by a court reporter.  The attorney can ask you about ANYTHING that could lead to admissible evidence at trial.  In other words, they can ask you about just about everything, and you have to answer.  If you are a party to the case, that deposition can be used in court to contradict your testimony at trial or in place of your testimony at trial.  It's that important.  It is also the only time that the other side's attorney gets to speak directly to you.  Here's what we've learned in the Trenches - if we treat the deposition as a conversation, you will too.  You will talk to us like you talk to your friends and acquaintances.  You will drop your guard, and you will say things that aren't entirely accurate or that you wouldn't have said if your guard was up, because that's how regular conversations go.  A deposition is not a conversation; it is court testimony in an informal setting.  Treat it that way, and you won't learn an unfortunate lesson at trial.

2.  Completing discovery isn't optional.  I know that answering interrogatories and producing documents is a massive pain in the posterior (remember, I was a client once too).  It seems ridiculous to you to provide every darn document requested and overwhelming to answer every interrogatory fully.  Do it anyway.  Let me say that again - Do it anyway.  If you don't answer every question completely, if you don't provide every document requested, and then try to introduce at trial information or documents that should have been provided but weren't, you will get a nasty surprise.  Your information or your document may not be admitted at trial, and if its an important piece of evidence, that preclusion could cost you a decision in your favor.  If that happens, it's no one's fault but yours.

3.  Monitor your electronics.  We are so electronically connected these days that sometimes it's hard to remember everything that has a password.  Sure, most people remember to change the password on their email and their social media accounts, but what about Alexa, your Nest thermostat, your Ring doorbell, your digital door lock, your security camera?  Did you know those all could be used to spy on you or to drive you a bit crazy?  Do you have your computer open while you're talking to your paramour?  Are you sure no one has hacked into the computer's camera and microphone?  Is the GPS enabled on the phone that's on your spouse's cell phone plan?  Is your iPad password protected -are files you don't want your children (or spouse) to see separately protected?

4.  Monitor your online presence.  I love the phrase that is being shared on social media - "Dance like no one is watching.  Post on social media like it will be an exhibit at your deposition."  Enough said.

5.  A text is not an oral conversation.  It is a writing.  It is not a "he said; she said."  It is evidence of what was said, every much as is an email.  Treat your texts as if they will be evidence at your trial.  Don't call your spouse names.  Don't rant.  Think before you text.  It is so much easier to press "send" in a text than in an email, and for that reason, many people send texts in the heat of the moment. Don't.  It will come back to haunt you.  Be businesslike and polite and you won't go wrong.

Learn these 5 lessons of the Trenches and you can concentrate on mastering the bigger life lessons.  Here in the Trenches.

P.S.  If you don't recognize the picture, it's from the scene in "My Fair Lady" when Audrey Hepburn finally "gets' her diction correct.

Divorce Decision Overload AKA Analysis Paralysis

I have a real love/hate relationship with technology.  Sure, I need it, and when it works, it’s great.  When it doesn’t work, it’s a nightmare.  Many moons ago, actually at least a decade, I decided I had enough clients that I need case management software to manage my contacts, check for conflicts, keep my electronic client files in one location, automate documents.  I did my research, exhaustively.  I read everything I could on the various software.  I talked to everyone who had the software about what they liked and disliked.  I went to the ABA TechShow and talked to the vendors and played with the software.  I made my choice.  It has not worked as well as I hoped.  Every year, they updated the software, and when they did, it changed the data fields, so I had to hire a consultant at thousands of dollars every year to fix it.  I stopped updating.  They sold the company to one of the big legal data companies.  That company updated again, plus refused to provide support if you didn’t subscribe to annual updates.  Well, given all I went through, I wasn’t going to do that.  So, I have sat for many years, not really happy, but not sure what to do about it.  It works well enough, but it’s not great.  I’m not really happy.

Given that everyone in my office, including me at times, is not physically in the office, we made it possible for everyone to hop on our server remotely.  Given, however, that the power tends to go out at the office periodically and throws the server offline, that system isn’t perfect and I thank goodness one of us lives within walking distance of the office to turn it back on.  I thought we could migrate up into the cloud, that we could move all of our data into a new online service that would solve all our problems.  Then I started talking to others, reading reviews, reading comments, and realized the cloud systems are no better than what I have.  Plus, they charge a pretty hefty fee each month for my four users.  So, I feel stuck.  Actually, I feel paralyzed.  It hurts to stay, but it may be worse to leave.

The story sounds familiar, doesn’t it, not because we all have a love/hate relationship with technology, but because it sure sounds like I’m talking about leaving a marriage.  For so many of the folks who come into my office, this is their story.  They dated their spouse a long time before marrying. Their spouse seemed to have all the things they wanted in a mate.  Their families liked them.  Then they got married, and it didn’t work out quite as they planned.  Maybe their spouse wasn’t who they seemed to be.  Maybe their spouse changed.  Maybe their needs changed. Whatever it was, things weren’t great.  They weren’t awful, but they had the sense they could be better.  They tried to make things work - they went to counseling, had date nights, spent time alone.  Still not great, but not bad enough to do anything.  Then that new person at work seemed to like them; they sort of connected, even though they would never cheat.  It made them think that maybe there’s someone else out there with whom they could be happier?  But what if they’re not happier?  Then what?  They’ll be alone; they’ll have torn their family apart for nothing.  Maybe it’s better to just stay where they are?  

What’s a client to do? What am I to do?  For me, I’m going to keep researching and asking questions, of colleagues, vendors, and techs.  I figure one day there will be that one thing that makes my decision for me, either to go or to stay.  That’s how it always is.  On that day, and not before, I will decide. Then, I will be at peace with my decision; I will stop feeling angst and face the exhaustive process of either migrating my system or making do with what I have.  

That is why I am, at times, exactly the same as my clients.  Certainly, many of them have reached that point of decision when they walk in my office.  Many more, however, are still ambivalent. They’re not positive they want their marriage to end or the custody to change.  With those people, I spend a lot of time exploring what they really need right then, what they will need to know in order to make their final decision, how they can gather that information, and how I can help them tolerate and manage the uncertainty.  Going into the Trenches can be a grueling process, and it can be worse if you’re not sure that’s what you want to do.  Sometimes a lawyer can help you move forward even if moving forward is staying where you are and being comfortable with it.  We have a lot more experience than our clients in managing uncertainty, analyzing options and helping them find creative solutions.  Your lawyer - not just when you’re sure you want to divorce.  Here in the Trenches.

The Lessons of John McCain - Here in the Trenches

After the death of Barbara Bush, we all knew what it meant when John McCain's family announced on Friday that he had discontinued medical treatment.  Just as with Mrs. Bush, however, that didn't make the news of his death yesterday any easier to hear.  I'd like to take this post to talk about John McCain and two of the things that we in the Trenches can learn from him. 

First and foremost, if you know your core values, it doesn't matter what anyone else does.  You will always follow your own star.  Mr. McCain was offered the opportunity to be released by the Viet Cong only a year into his captivity.  He declined it because he knew it was because of who his father was, and that it would be used to break others who had been held longer but who didn't have well-known parents.  In other words, early release violated his personal ethics, so he didn't do it, even though it meant he was held almost 5 years longer than he could have been, in that hell-hole known as the Hanoi Hilton.  I don't think I need to talk about Mr. McCain's action in voting against the repeal of the ACA, against the mandates of his political party, because it was wrong.  (I don't care if you agreed with him.  It took guts and conviction to stand his moral ground against his political party).

Here in the Trenches, there will be people who do the wrong thing.  They exaggerate or outright lie.  They manipulate the children.  They hide money.  It's wrong to do that.  Yet, often it seems nothing bad happens to those people, that there are no consequences for bad behavior.   It's so tempting when faced with unpunished bad behavior to engage in it as well.  It takes a strong person to stay true to your inner self when your world is in chaos.  It takes strength to say no to short-term satisfaction.  John McCain knew the cost of not being true to himself - it's a looking yourself in the mirror for the rest of your life kind of thing.  If he can do it, so can you.

Second, he knew that mistakes don't have to define you.  John McCain's first marriage ended after his return from Vietnam.  Some of that was caused by the trauma of that captivity.  Some of it was caused by his infidelity.  Yet, you never heard about that during any of his campaigns.  I think that was, in large part, because he didn't hide it.  He owned it.  He moved on from it.  I am certain he felt guilt and regret, but he did not let them overshadow the rest of his life.  He made other mistakes as well, notably failing to speak his mind about the removal of the Confederate flag from the Capital building in Columbia, South Carolina, and his mistakes during the Keating scandal. All of us make big mistakes, luckily usually not in a national forum; he owned up to them and used them to inform his future actions and to teach the rest of us what humility looked like.

Here in the Trenches, folks do a lot of things of which they're not proud.  Some of those things are big; some of them are not. Some people kick themselves endlessly about what they could have done differently.  Some people let what they did wrong brand them for life.  Of course, there are those who behave badly who feel no guilt or remorse and we're not talking about them. The point is to face what you did wrong, what you didn't do right and deal with it.  Use it as a learning moment.  Embrace it.  Then us it to instruct your future self, move on and let the rest of your life show the rest of the world who you really are.  R.I.P. Senator John McCain.  Here in the Trenches

How Much Will My Divorce Cost? - Part 4 of 4

Whew!  You made it to part four.  Thanks for reading.  This part of How Much Will My Divorce Cost? is the hardest to think and write about.  This week, we're talking about fixed fees and value billing.  Why is this subject so difficult? There are a couple of reasons.  From the client's perspective, most of them have never been in the Trenches.  They have no idea of the value of legal services.  They all think that their case will be easier and take less time than other cases.  Plus, it seems like a lot of money to pony up.  From the attorney's perspective, they fear that without the hourly rate as a disincentive, clients will call them one million times a day, and monopolize their time, or (shudder) drop in unannounced multiple times a week.  It's also too much work to either figure out a fee that averages out to be reasonable or to sit down and have a deep conversation with the client about value and scope of service.

As we've done in the other parts of this series, let's start with definitions.  A fixed fee is a set amount of money that an attorney charges, either for set periods of the case being active or for discrete portions of the case, as opposed to a flat fee, which is a set fee for the entire case.  Let me give you more detail.  In a fixed fee, the attorney might charge the client $4000 for every 3 months the case is active, due and paid in full at the beginning of each period.  If you settle the case within the 3 month period,  then depending on the attorney and the length of time remaining in the time period, the client may or may not receive a refund of the pro rata unused portion.  An attorney might also charge a client per stage of the case, due and paid in full when that stage starts.  For example, the client might be charged for the initial litigation filings, then for discovery (information gathering), then for a hearing (which is generally a short court appearance), then for mediation, then for depositions, then for trial, and then post-judgment matters.  Each stage has its own fixed fee depending on how much time, skill and legal knowledge are required.  Fixed fees tend to apply across the board, with not a lot of customization.

Value billing is perhaps the most difficult of all the types of fees for the client to understand and the attorney to explain.  Value billing is simply that - deciding on a value to the case which adequately addresses the time and skill required of the attorney, and which the client believes is acceptable.  This kind of billing is difficult for a whole lot of reasons.  First, the client has to have a realistic vision of legal fees and the value of legal services.  That's difficult for most clients in the Trenches because the Trenches are usually the first and only time most people are ever involved in the legal system and have no concept of the reasonableness of a lawyer's fee.  Remember, part of reasonableness is the norms of the community, and they don't know what those are.  Second, The attorney has to assess the case in greater detail than they normally do in order to determine what the attorney thinks is reasonable. This assessment requires the attorney to do quite a bit of background work (at no remuneration) before setting the fee in order to determine the scope of the representation.  This second point is difficult on a couple of fronts: first, the client is usually anxious to hire counsel and may not want to wait to have an attorney under contract; second, the attorney may not want to put that kind of time into a lower dollar case. Third, the client and the attorney have to have an extremely detailed discussion of the extent and terms of the representation.  Having this kind of discussion when the client is emotional and overwhelmed is a challenge, but doable.

So I retain the format of the other posts, here are the pros and cons:

Fixed Fees

Pros

1.  The client knows what the representation will cost.  The attorney knows how much revenue the client will generate.
2.  The client can budget for the fee due dates.  The attorney has the certainty they will be paid and on time and their receivables will decrease.
3.  A fixed fee may be cheaper in the long run than an hourly rate.  The attorney has the incentive to be more efficient.
4. A fixed fee rewards the client who settles their case early. A fixed fee may mean the client is as motivated to settle as the attorney.
5. If the case turns out to be very complicated or time-consuming, the client doesn't need to worry it will increase fees.  The attorney can be creative without worrying if their creativity is costing the client too much money.
6. The client will feel free to share all important information with their attorney without concern for cost. The attorney will have all the information they need to best represent the client's interests.
7. The fee the client pays aligns with their need. The client may be willing to pay a premium for certainty.

Cons

1. The client may not have sufficient sources of cash or credit to pay a substantial fixed fee.  The attorney may lose clients who don't have the money up front, but who could pay over time.
2. A fixed fee may be more expensive than an hourly rate, depending on the complexity of the case and the length of time to completion.    
3. Knowing that there is another deadline for infusion of cash may cause a client to settle their case under unfavorable terms. Knowing a client lacks the funds to continue may also pressure the attorney to settle.
4. The client may cause compassion fatigue in the attorney by calling all the time.  Why won't the client stop calling?
5. This method may also inhibit creativity in order to get the case done before the next stage or installment of payment.  

Value Billing

Pros

1. The client is well-informed about the scope of the representation to be provided by the attorney.  The attorney has thought out the scope of representation and the intricacies of this particular case.
2. There are no surprises in the fee. Everyone knows what is expected of whom.
3. The client feels they are getting value for their money. The attorney knows the value the client places on their expertise.
4. The client sees the plan for the treatment of their case. The attorney develops the plan for the client's case early, before representation begins.
5. The client gets the best from the attorney because money is no longer a consideration.  The attorney can be as creative as they need to be without worry over cost to the client.
6. The client knows whether they can afford the attorney.  The attorney knows they're getting paid.
7. The representation begins with the client and attorney working as a team.  The client plays an active role and has a stake in the representation from the beginning.
8. It's the goal, not the fee that determines the cost.  It's the goal, not the fee that determines the cost.
9. The client doesn't have to worry about how much time the case takes. The case takes the time it takes.

Cons

1.   The client may lack the knowledge to adequately assess the value of the attorney's services.  The attorney may oversell the value of their services.
2. The client may not have sufficient sources of cash to pay the attorney.   The attorney may lose clients who don't have the money up front, but who could pay over time.
3. A fixed fee may be more expensive than an hourly rate, depending on the complexity of the case and the length of time to completion.  
4. The client may be too emotionally overwrought to decide whether a value-based fee is reasonable.  The attorney has to assess carefully the client's capacity to understand and make decisions.
5. The client can't hire the attorney or know the fee at the initial meeting. The attorney will have to put in significant time for no pay to decide the fee, with no guarantee they'll be hired.
6. Sometimes the lawyer may charge a wealthy client more than a client of more limited means for the same work.  

How Much Will My Divorce Cost? - Part 3 of 4 - Flat and Capped Fees

Not all attorneys charge strictly by the hour.  Some of them offer a flat or a capped fee.  What are they, and what are their Pros and Cons?

For purposes of this post, I'm going to define a flat fee as an all-inclusive, one-time fee that covers your case, soup to nuts, no matter the facts.  For example, some attorneys charge a flat fee for an uncontested divorce.  That fee covers preparation of the pleadings, necessary orders, and court appearance. If any other issues come up, say that the divorce isn't really uncontested, that is not covered, and many times the attorney defaults to an hourly rate.  Some attorneys charge a flat fee for a contested divorce, or for drafting a separation agreement.

A capped fee is when the attorney says that they will charge their hourly rate, but if the total bill reaches a certain dollar amount, they will stop charging.  So, if the attorney agrees to cap the bill at $20,000, once the hourly billings hit $20,000, the client doesn't owe any more money.

What are the pros and cons of each?

Flat Fee Pros

1. The client knows exactly how much they will be charged.  The attorney knows exactly how much to charge the client.
2. The client knows up front whether they can afford the attorney.  The attorney knows up front if the client can afford them.
3. The client pays up front and then they're done paying.   The attorney gets paid in full before starting work.
4. If the work is simple, then the fee represents the value of the work performed.  The work performed in a flat fee arrangement is usually work the attorney has done many times, so they aren't taking any risk and are probably making money.

Flat Fee Cons

1. The client doesn't always know what their case entails at the start of the representation.  The attorney may find there are unforeseen facts or circumstances that make a flat fee impossible or impracticable.
2. An unforeseen circumstance may cause the case to be more expensive than the flat fee.  The attorney may end up having an uncollectible fee if the cost exceeds the flat fee.
3. The client doesn't understand how the fee was set because it wasn't set with them in mind.  The attorney is resentful because the fee turned out to be too low for the amount of time and effort expended.
4. If the fee is set too low, the client may feel that the attorney isn't giving their case the attention it needs.  If the fee is set too low, the attorney may not give the case the attention it needs.
5. If the fee is set too high, the client may feel taken advantage.  If the fee is set too high, the attorney may gain a windfall.
6. The client and the attorney need to have a frank and detailed discussion about the scope of work, but they don't  The attorney and the client need to have a frank and detailed discussion about the scope of the work, but they don't.

Capped Fee Pros

1. The client knows the maximum amount they will be charged.  The attorney knows the maximum amount the case is worth.
2. Well, that's it for the pros.

Capped Fee Cons

1. This is the worst of all worlds, for both the client and the lawyer because it is essentially an hourly rate in which the lawyer simply doesn't get paid for their time if it exceeds the cap.  Why is this bad?
2. The client doesn't really get a windfall, because if the fees exceed the cap, there is a real risk the attorney may put the work on the back burner.  The attorney has no incentive to make that client a priority once they reach the cap.
3. There is no personalization of the fee to the client. There is no personalization of the fee to the client.
4. Just like hourly fees, there is no discussion about expectations and scope of work.  The attorney has no idea if they're making money, and in all likelihood, they are losing money.
5. Because the only upside of a capped fee is for the client, the attorney who offers this kind of fee is either a friend or a relative of the client, or really insecure about the reasonableness of their fee.  The client doesn't want an attorney who has no confidence in the reasonableness of their fee.

How Much Will My Divorce Cost? Part Two of Four - The Hourly Rate

Thanks for wading through Part One of this series.  Gird your loins for Part Two.

There are four main ways an attorney in the Trenches can bill for services:  hourly rate, flat fee, capped fee, fixed fee/value billing.  There are also combinations of the two, such as an hourly rate with some items charged as a flat fee, but we're not going to be talking about those.

Most clients who enter the Trenches hire an attorney and pay an hourly rate.  What that means is that the attorney charges for the time it takes them and their staff to complete a task.  It has the benefit to the client that they know how much the attorney charges per hour.  It has the benefit to the attorney that they know that everything that they do for the client it quantified.  Beyond that, what are the pros and cons of using an hourly rate here in the Trenches?

Pros

1. The client knows that every time they call the attorney, they are going to be charged. The attorney knows that the client knows that every time they call, they'll be charged, so they won't call too much and monopolize the attorney's time.
2. The client knows exactly what they are going to be charged for the time the attorney spends on their case.  The attorney knows how much to charge for every task. because it all gets charged the same.
3. The client just has to be concerned with paying the monthly bill for their attorney's fees.  The attorney can spread out receipts because they're based on time, not the case.
4. The client doesn't have to come up with a large sum of money up front.  The attorney can get a client signed up for not a lot of money, so more people will retain the attorney.
5. A more expensive attorney probably takes less time to do a task, so they're no more expensive than a cheaper attorney who takes longer. A more experienced attorney can charge a higher rate.
6. The client can determine what is and is not important to them based on the fee.  The client has no knowledge of what is appropriate to do or not to do and so a decision on process based on the hourly rate for the services may not be informed. 

Cons

1. The client knows that every time they call the attorney, they are going to be charged, so they don't call the attorney.  The attorney doesn't know vital information because the client didn't want to be charged to provide it.
2. The client has no ability to budget for legal fees because they vary based on the amount of work done.  Because the client has no ability to budget, the attorney may not get paid in full each month.
3. The client has no control over the amount of fees charged in a month. The attorney controls the amount of fees charged in a month by the amount of time they spend on a case.
4. The client doesn't want the attorney to pursue an issue because they don't have the money.  An attorney may limit the issues they pursue if they know the client has limited means (it shouldn't happen, but sometimes it does).
5. Every task is worth the same, no matter if it involves high skill and creativity, or simply churning out a form.  Every task is worth the same, no matter if it involves high skill and creativity or simply churning out a form.
6. Because a client is charged for time spent by the attorney, time spent waiting for a hearing, waiting for a judge, waiting for the other side in mediation, all increase the client's cost because they're being charged for the waiting. The attorney feels pressure to do work for other clients while waiting so they don't charge the client they're waiting for, and miss an opportunity to connect and learn more about the case. 
7. The attorney has no incentive to be efficient; being inefficient is more profitable.
8. The client is surprised by the amount of the fee.  The attorney spends years collecting the fee.
9. The client doesn't appreciate the value of the legal advice and expertise. The attorney doesn't appreciate the value of their legal advice and expertise.
10. The client may run out of money and have to enter into a settlement they don't want because they can't afford to keep negotiating.  The attorney may not have the money to explore all avenues of settlement.