I read this article the other day on the Huffington Post and it was written by divorce lawyer Ms. Etezad Rachman. And this is an excerpt from her article:
There is only one sure bet about divorce, and that is this: hiring a divorce lawyer will only make things more expensive and nasty. I have seen some rackets in my day, but none surpass the self-serving nut house that is our adversarial divorce system. It isn’t bad enough that you are losing a spouse, someone you loved once and probably depended on either financially or emotionally, but if you go the lawyer route, you are going to be fighting a war on two fronts. You don’t recognize it at first, but after spending somewhere $10,000 or $1,000,000 on attorney fees, the smart person starts to see that the only people benefiting from your divorce are the lawyers. Anyone who assumes their divorce attorney is their friend and is looking out for their best interest is a fool who will soon be parted with all their money.
That was a heavy statement, I thought. So I ran it by our committee and we decided to ask a New York divorce attorney to tell us what she thought about what Ms. Etezad Rachman had to say. This is the Interview:
Divorce Saloon: You are a divorce attorney in New York, correct?
New York Divorce Attorney: Yes I am.
Divorce Saloon: Do tell, do you agree with Belinda Etezad Rachman when she says “ There is only one sure bet about divorce, and that is this: hiring a divorce lawyer will only make things more expensive and nasty.”
New York Divorce Attorney: No, not at all. I strongly disagree with this statement. First of all, it is a gross generalization. Divorce attorneys come in all shapes and price ranges and personality types, just like the rest of the population. And frankly, sometimes, the least expensive thing a party to a divorce action could do over the long run, in my opinion, is hire a competent lawyer from the start who can work collaboratively with the individual to see to it that their legal rights are protected and realized.
Like any other legal proceeding, a divorce is a serious legal matter with serious legal consequences. There is nothing blasé about it and it is almost irresponsible, in my opinion to so cavalierly suggest that a litigant should not hire a divorce lawyer for fear it will be “nasty” or “expensive.” This is a naïve position to take because not getting representation when you need it can be even more costly.
With respect to the issue of nastiness, I know many lawyers who are anything but nasty. The thing I’ve found with nastiness in the profession is, if someone was going to be nasty anyway, it doesn’t matter what their title whether lawyer, doctor, receptionist, journalist or police officer, or whatever. A nasty person is just a nasty person in any profession. This quality is not endemic to divorce attorneys. It is incredibly marginalizing to say that. In my own personal experience, I have consistently been a lawyer who encourages clients to work cooperatively with each other to resolve the case and to stop the bickering with their spouses. You’ll never find me bickering with opposing counsel unless counsel starts with personal attacks or is an arrogant, insolent prick – which has happened. In which case it can get ugly pretty quick.
And this is not always an easy job, believe me. Because there usually isn’t any angrier person than a person going through divorce – men and women alike they tend to be very angry with each other, and thus, can quite frankly be very “nasty” with each other. Sure, there are many litigants who have and want an “amicable divorce” but for a large pool of litigants, this just isn’t reality. Some judges too can be less than civil. There are so many players in this high stress environment who may not be their most charming during working hours. And it is understandable. As the attorney, part of your job becomes referee. And another part is warrior. And you have to adopt a very strong stance dealing with clients and dealing with opposing counsel and with your client and with the court (to a lesser extent in the case of the latter if you know what I mean). But strong is not nasty, necessarily. And in this business, nice is not strong. So what is a lawyer to do?
Divorce Saloon: But surely there are nasty divorce lawyers? You are not suggesting that there are no nasty divorce lawyers?
New York Divorce Attorney: God, no. I am not suggesting that at all. Are there “nasty” lawyers in the divorce bar? Yes! Of course there are! There are nasty people everywhere. And many of those people are divorce lawyers. Absolutely. All I’m trying to say is that I cannot accept as ispe dixit that divorce lawyers as a group are “nasty” just because another divorce lawyer said it. I think she ought to speak for herself on this one. I am a divorce lawyer. I am not nasty by nature. I have met many divorce lawyers who are not nasty by nature. I have also met many pe0ple – clients, judges, security guards, teachers, doctors, receptionists, all sorts of people - who are not lawyers and who can be nasty under certain circumstances. It really is not a quality unique to divorce lawyers.
I think the stance one is often forced to take as a divorce lawyer is one of toughness and one of strength because of the litigants and because of the way the system is set up and designed, and to a certain extent, because of what clients expect of you too. Nice guys finish last not just in life, but also in divorce court. So yes, divorce lawyers can seem tough and sure, many are nasty sobs too. But I cannot allow anipse dixit such as what the author of the Huffington Post article said, without a rebuttal.
Divorce Saloon Belinda Etezad Rachman has said, “ I have seen some rackets in my day, but none surpass the self-serving nut house that is our adversarial divorce system.” What do you say to that?
New York Divorce Attorney: What do I say to that? Well, the system is bit nutty, true. I sort of have to agree with her there. Especially the family court side, not so much the Supreme Court side which hears divorce matters. That tends to be a slightly more sophisticated experience. But I don’t think the fault is the lawyers either way. In a real way, lawyers can be just as victimized by this system as the clients. For example, many lawyers I know have been screwed by clients who refuse to pay after the lawyer has done the work; and then the court refuses to release the lawyers from the case and so the lawyer is reduced to involuntary servitude! Because you know the client will sue for malpractice to get out of paying. That’s pretty nutty, isn’t it? It is also nutty how many of the players act in court. It can be a real circus. And I say that with all due respect. Some counties are worse than others, of course. But it is truly a remarkable experience. The court house corridor is a place that very bizarre things do happen and very bizarre things get said and done. That is why there is such heavy security, I think. Because it is anticipated that very nutty things can and often do go down. Nowadays, all parties have to go through metal detectors before they are allowed in the court room. Lawyers don’t go through the metal detectors. But all litigants do so that should be telling to a great extent.
Oh yes, it is quite nutty, I have to admit. Belinda is right with that. Totally unpredictable. Divorce practice is no place for the faint of heart, I tell you. In the family courts, I think it is even more insane than, say, the Supreme Court where divorces are heard. And I’m not exactly sure why that is. No question it is a nutty environment but as lawyer, I can’t take the responsibility for that. If a client comes to me for representation, I show up and do the best I can. I certainly did not create the insanity of that person’s life, or the insanity that permeates the lives of many of the litigants, or the insanity that is going on in the corridors, or in the courtroom itself. I don’t write the laws themselves either that sometimes may have nutty results depending on which side you are on. A legislature does that. They write the laws. People should remember that. The lawyer does not write or interpret the laws. So don’t blame the lawyer when things don’t work.
All the lawyer gets to do, as the lawyer, is use what the legislature wrote to try to advocate on behalf of my client in front of the judge. Lawyers try to find a method in the madness to benefit their clients. Most lawyers I know work very hard for their clients. They are up nights working on cases. They are sacrificing their families to get those legal briefs and motions and trials written and prepared. This is grueling. It is no joke. That’s what I think most lawyers try to do. It is very hard work. Very stressful. Rife with peril.
I think it is outrageous that Belinda chooses to characterize what most of us in the trenches are trying to do as “self-serving.” And it’s as if she gives lawyers sole credit for this “nut-house.” But that is not fair. After all, lawyers are just visiting the place on that particular day on someone’s behalf. This nut-house is not ours! It belongs to the judges and the litigants. The lawyers have the least claim to the place. We go home to our own nut-houses at the end of the day.
Divorce Saloon: LOL. Belinda had this to say: ”You don’t recognize it at first, but after spending somewhere $10,000 or $1,000,000 on attorney fees, the smart person starts to see that the only people benefiting from your divorce are the lawyers.” What is your response?
New York Divorce Attorney: When a client comes to my office, usually, in 999.999% of the time, this is the first time I am meeting this individual. I had nothing to do with their lives, or their marriages. They come to me with a legal problem. The problem is that they want to get out of a contractual agreement with their spouse. Often times, they have some specific directives. They may want to keep custody of a child that belongs equally to their spouse. They may want to keep the marital residence and have their spouse move out immediately. Their spouse may have a pension account that will be quite valuable at retirement and they want to ascertain that they get a fair share of the proceeds. Their spouse may be wrongly accusing them of adultery. There are myriad issues in the average divorce case that are exacerbated by the breakdown of trust in a once loving union. Most often than not, the parties are angry and the last thing they want to hear from their lawyer is “oh, don’t worry about it. Just settle everything. Give him half and call it a day.” Trust me if the client felt that way from the start, there would be absolutely no reason to get a divorce lawyer. People get lawyers because from the get go, they don’t feel that magnanimous towards their spouse, or they don’t feel their spouse will be magnanimous towards them and they want to protect their interest.
There’s no problem with that. The problem I have is that in order to properly represent a client, there is a ton of legal work, court appearances, writing, counseling, negotiating, strategizing, thinking, stressing, out-maneuvering, anticipating, that has to be done on that client’s behalf. Belinda knows that because she’s been a lawyer. This is a service to a client that has a value. This is that attorney’s work and for the product of that work, the client has agreed before hand to pay. I think that is fair. This is a capitalistic society we live in after all. And on top of that, all who work should be paid for their labor. How would you feel if you went to work and on pay day your boss tells you that either (a) they can’t pay you or (b) they won’t pay you? How would you feel about that? Would you just say, “fine. It’s ok?” I don’t think anyone would like that. It would make the five o’clock news, probably. People would be outraged. Why should it be different for an attorney?
The workman/woman is entitled to his or her wages. Anyone who works is entitled to get paid especially if there was a prior agreement for payment, a la the retainer agreement. This idea that a lawyer is the only one who makes money on a divorce is ridiculous. Hopefully at the end of the proceeding the litigants will be walking away with a fair share of their marital assets and this will define the rest of their lives. But they have to pay for the service. It is not a free service. A lawyer is entitled to be paid for his or her work without being insulted and without being called names like “nasty” and “self-serving.”
Now, to the extent that folks can settle these issues through mediation or in a less adversarial way, my hat is off to them. I recommend it. I really do. But even so, they still have to pay for the service. Mediators are not volunteers either, you know.
Divorce Saloon: Thank you for your time in answering these questions.
New York Divorce Attorney: Thank you for having me.
There is only one sure bet about divorce, and that is this: hiring a divorce lawyer will only make things more expensive and nasty. I have seen some rackets in my day, but none surpass the self-serving nut house that is our adversarial divorce system. It isn’t bad enough that you are losing a spouse, someone you loved once and probably depended on either financially or emotionally, but if you go the lawyer route, you are going to be fighting a war on two fronts. You don’t recognize it at first, but after spending somewhere $10,000 or $1,000,000 on attorney fees, the smart person starts to see that the only people benefiting from your divorce are the lawyers. Anyone who assumes their divorce attorney is their friend and is looking out for their best interest is a fool who will soon be parted with all their money.Read more at: http://www.huffingtonpost.com/belinda-etezad-rachman/divorce-lawyers-and-the-r_b_295352.html
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Belinda, thank you for clarifying that you are mostly talking about California law, especially with respect to the guarantee of payment and the attaching of real property. Yes, I can see a conflict of interest there. I also agree that ideally, custody issues should not be conducted in an adversarial climate. But try telling that to the average litigant who comes in seeking legal counsel on this issue. As I stated in my interview with Divorce Saloon, as an attorney, in almost 100% of cases, I don’t know my clients prior to them coming in and seeking representation. It is they who have had a breakdown in their marriage and family to the point that all they want is a “cut throat attorney” (which I am not) to get the child from the other spouse. My hat is off to you with what you do with mediation. I do feel that mediation should be mandatory prior to any divorce litigant seeking a lawyer. Not only is it good for families, it protects lawyers and puts the onus on the couple to be grown up about it and try to resolve their differences without too much blood shed.
Lawyers are not in the business of babysitting adult litigants. Nor do we preach or impose our will – at least, we shouldn’t. What we get paid to do is to achieve the will of the client to the extent possible. If there are some states that makes that objective more juicy by encouraging lawyers not to advise their clients to settle a case when the case should be settled, I would not be surprised. But I still feel that such a blanketed broad brushed stance that attorneys are the bad guys in divorce is unfair and way too stereotypical.
Yes, New York and California differ on this issue of payment I see. Nothing is guaranteed to a New York lawyer. If the client refuses to pay, you can arbitrate and then you can litigate. But if the client is judgment proof, then what? And of course, a client is going to accuse you of malpractice more than likely to try to get out of paying. It’s a real mess. I am certain other states have their own schemes regarding payment, and other countries around the world. (Divorce lawyers exist in all countries, you know. Do you think they are all reptilian gladiators too?).
Our equitable distribution scheme in New York would also produce more litigatious issues than would the community property scheme in California. Because what is “fair” is open to debate, isn’t it? And that is why a lot of clients in the East might opt for trial if they feel they can’t get a fair shake by mediation or simply negotiation….
Are there gladiators in the profession? Yes. But I don’t think that is the majority or even half of divorce lawyers. I know I personally, like you, have a background in education and I taught for several years in the New York public school system too, and I am all for the kids. Plus, I was raised Catholic and am very conflicted about divorce. I don’t think we are unique. There are many divorce lawyers who think divorce litigation is for the birds.
The problem often is, your client comes in and wants blood. You client hires you because you have a reputation for being “cut throat” (or don’t hire you for the opposite reason). You really just can’t put the blame on divorce lawyers. We are not in the business of parenting our clients and telling them what to do and what to want. We simply try to achieve what it is they they tell us they want. You are basically villainizing us for doing what they asked us to do.
This has been a great banter between the blogs and between attorneys to give outsiders a look into the world of divorce professionals. I respect what has been said by all parties here with the knowledge that there is a grain of truth in all of it.
There is one more way to help clients who want to potentially reduce legal fees over all and that may be for some clients to work with a divorce financial planning professional either before they begin divorce, or simultaneously while working with a mediator or attorney.
Divorce financial planning experts may have less hourly fees than attorneys or mediators depending on the level of expertise needed (ex: a CDFA – Certified Divorce Financial Analyst vs. a Forensic Accountant which will be more costly, but is not necessarily needed in every case).
Once the numbers and the issues around the children are worked out, there usually isn’t much left to fight about. These leaves those couples who are able to craft their own agreements, the option to now file an uncontested divorce saving them many thousands of dollars in the legal process and their long-term sanity as well.
Lisa C. Decker, CDFA
http://www.DivorceMoneyMatters.com
Please correct the 4th paragraph that reads
Property division is more problematic in non community property states, but then again, there are millions of people who have already divorced in your state and (t)he law is settled.
and turn the he into the.
Thanks
Belinda, thank you for your comments. We welcome you to our conversation, of course. And thank you for clarifying that you were referring mostly to California divorce attorneys. It seems the laws might be a bit different in New York and California on this issue. But I have forwarded your comments to the attorney a few minutes ago.
Since you are talking about what I said, I thought I should poke my nose into this conversation. I don’t know how divorce lawyers are paid in New York, but here in California we are the ONLY kind of lawyer whose pay is guaranteed BY LAW to be paid from the equity of the client’s home. If you think that isn’t a conflict of interest, you don’t understand the term! There is NO benefit in taking a reasonable stand or encouraging your client to be reasonable when the fees you collect depend on making sure the case continues. When our fees are unpaid there is a simple motion to be relieved that is granted so there is no question of involuntary servitude as described above.
Each state handles divorce in their own way but actually when you break it down every divorce issue either deals with the children, division of debt/property or support. Every state has guideline child support laws that are based on time share and income or ability to earn, so honest people who accurately report their income have no issues setting support once you can plug in the income and time share numbers.
Custody is an issue that is so inappropriate to be settled in an adversarial setting that I continue to be amazed that anyone would want to settle that issue among paid strangers who don’t know you or like you. If you want some stranger to tell you how to raise your child, hire a family therapist, let them get to know both of you, interview the children and let THEM decide what is in the best interest of the children. It is a LOT less expensive but you won’t hear many lawyers advocating a reasonable solution like this because it would hurt their bottom line.
Property division is more problematic in non community property states, but then again, there are millions of people who have already divorced in your state and he law is settled. Experienced divorce attorneys have a pretty good idea what the court is going to do in common situations. It makes no sense to litigate the obvious but your average divorce lawyer is NOT going to come down hard with paying clients who want what they are not entitled to. Unfortunately, there are too many lawyers who tell their clients what they want to hear instead of being honest because they don’t want their client to shoot the messenger if the news is not what the client wants to hear.
You see I was a special ed teacher in New York before I was a lawyer. I taught severely emotionally disturbed children in Manhattan State Psychiatric Hospital, a Jr. High in Harlem, another one in the East Village and at an elementary school in the East Village. My heart has always been with the kids. I was a child of a nasty divorce. My orientation is completely different than the gladiators who are attracted to becoming trial attorneys. It takes a certain personality type to be comfortable in that world. They can justify their unneeded discovery and expensive continuances by hiding behind the veil of pretending to be a zealous advocate for their client but after 8 years of being a trial attorney I refused to continue to participate in a system that totally destroys a couple’s ability to co-parent their children so I walked away from a successful law practice and have done nothing but mediation for the past 5 or 6 years. I have worked with over 250 couples now and every one has settled. I KNOW lawyers could REALLY help people if they wanted to, but it takes going way outside the adversarial box. When I founded the Peaceful Divorce Movement, I knew there were other lawyers like myself who were equally disgusted by our adversarial system. They recognized that there are too many divorce lawyers who pour gasoline on the fire by manipulating emotionally vulnerable clients to continue fighting because that is how THEY get paid. Any experienced divorce attorney knows EXACTLY what I am talking about. They KNOW attorneys who fit the description. If they deny it, they are not that experienced or THEY are THAT attorney. Consumers need to DEMAND better service. The average person should NOT hire lawyers to represent them, only to assist them by answering questions, doing discovery only when needed and then advising them on the most likely outcome in court and then following the law instead of fighting the obvious.
In order to benefit MOST, the couple MUST work together to reduce legal fees so THEY can keep the money. Parents MUST protect children from being caught in the middle of a fight by focusing on the children and not their own hurt feelings. As for property division, you have a pie, you can cut it in half and keep half, or get lawyers involved and divide the pie in 4ths. Which way will YOU get more?
I have never met a couple I couldn’t deal with. OK, I have very special skills given my Masters in Special Ed but just because other mediators don’t have 100% track records like I do doesn’t mean mediation isn’t a better option. It is the rare case that needs to be settled in trial. I am the first to admit that mediation is NOT for everyone, in fact I have a little test on my website on the page called, Is Peaceful Divorce For You, that will automatically eliminate those who can not truthfully answer Yes to each question. There are situations when you NEED to hire a lawyer to help you, but I know that is not the average case. Peaceful Divorce is an idea whose time has come but most lawyers benefit from the adversarial process and will not be the change agents needed to transition to a new way of dealing with family law cases. The participants in the process must be the ones to demand a better way of dealing with the end of marriage issues or else it will never happen. Who is with me?
Hey, do you think there should be a learners permit for couples before they get a marriage license?
Yes I do. I think I said that in another post. I absolutely do. Read this post here: http://www.divorcesaloon.com/the-divorce-revolution-has-divorce-become-too-commonplace