The Art of Matrimonial Law: The Initial Interview

Nothing defines the art of matrimonial practice like the initial interview. Unlike the mechanics of preparing pleadings, managing disclosure or presenting proof, the initial interview requires an analysis of a potential client’s difficulties, the application of legal principles to facts, and an effective communication of expectations. It is the time when the client sizes up the lawyer for professional skills and the ability to communicate, and you size up the client for his or her willingness to listen to your advice, to appreciate resolution with reasonable expectations, and to understand the value of your legal services. For the experienced practitioner, it is the most fun you can have in the practice of law. You have somewhat of an understanding of the final result, although you cannot necessarily predict the path to get there as that depends upon the opposing spouse and his or her expectations. While there is a great deal of literature on child support, custody, equitable distribution, Family and Supreme Court, there is very little that tells you how to handle the most important aspect of the attorney/client relationship: the initial interview. It sets the tone for the entire dispute. While you can start the client on the right path with a reasoned analysis and the presentation of options, your interview can also be the beginnings of disaster. When a client is given unrealistic expectations or an underestimation of the cost of the representation, bad things will happen. There are a variety of pitfalls that will lead to future rancor, dissatisfaction and unhappiness. I hope this article gives you some guidance to avoid the pitfalls. Although you cannot guarantee a happy client at the end of your representation, you can at least insure that the client will realize the risks that are taken, and appreciate your counsel in shepherding him through a difficult time.
EXPECTATIONS
Invariably, the first question asked of a new client is, “What can I do for you?” The answer is always revealing, and often potential clients merely say they wish for a divorce or a separation. Your advice starts from this framework.
If you think about it, no client’s goal is a divorce or an agreement. That is just the means to the end. Ultimately, you are going to tell the client what are his or her goals. Once the client understands, a light will go on and you can proceed to obtaining those goals through an analysis of the facts. To put it another way, you can tell a potential client that if his or her goal is an agreement, we will just ask the other spouse what they want, write it down, and you can sign it. It may not be appropriate, and it may not be fair. However, you will have an agreement. Once the potential client hears this, he will understand that the goal is not really an agreement, but something else. Tell a client that there are two ways to resolve the matrimonial difficulties. First, you can sign an agreement resolving the issues. Otherwise, you can have a judge decide after trial. The client needs to know that there is no other way to resolve matters. There is nothing “in-between.” While a client can attempt to reach an agreement through mediation, collaborative law, or sitting down discussing things over a cup of coffee at the kitchen table, the client must realize that there is no other way to finally resolve matters other than an agreement or having a judge decide. Often clients have the notion that there is something else, such as the attorneys getting together and speaking, the judge telling you what is going to be in an agreement, or magic dust being sprinkled on the spouse. The potential client needs to be immediately dissuaded from all thoughts that there is any other way. It is important to review the advantages and disadvantages of an agreement versus litigation. The client needs to be told that as between an agreement and litigation, no one would choose litigation. There are a variety of advantages to an agreement: it is less expensive, there are fewer legal fees, it is more likely to be enforceable, it can be converted into a no-fault divorce after a year, and it is relatively quick. The agreement has only one disadvantage: you need to agree. Unlike certain labor contracts, there is no such thing as “bargaining in good faith.” The spouse is entitled to be as unreasonable as he or she wishes, without consequence. In spite of the fact that one may receive less after litigation, you cannot apply to the judge to review the facts and tell the parties what should be an agreement. You cannot “sue for a separation agreement.” One hopes that all matrimonial parties are reasonable, and can reach an agreement. The purpose of negotiating an agreement is to obtain close to or better than what one could attain after litigation. In view of the costs of litigation, as well as the time, effort and energy, if you could even approximate what a court is likely to do, the client should be cautioned to seriously consider signing an agreement regardless of personal views of fairness and equity. Clients need to be reminded that certain statements have no significant meaning, but are stated by all people in the throes of matrimonial discord. These statements are universally espoused. “I only want what is fair.” “I do not want to have to go to court.” “I do not want to have to spend a lot of money on legal fees.” “I want this resolved amicably.” Everyone says that, but it does not help.
While litigation has many disadvantages, it has one great advantage: it does not matter what the opposing spouse offers, the Court resolve the issues. One of the great mistakes of matrimonial practitioners is to seek litigation without apprising the client of the devastating cost to have a judge resolve anything. Nothing is more expensive than litigation, and sometimes it does not work. For example, when the client does not have grounds for divorce under Section 170 if the Domestic Relations Law, he can spend tens of thousands of dollars on experts and attorney fees only to be told in nine months to a year that there are no grounds for divorce. He will have obtained nothing except a very large legal bill.
Because we are so highly regulated, the amount of the legal fee is a function of the hourly rate times the amount of time necessary to resolve a matter. Nothing is more time-consuming than divorce litigation, and therefore, nothing demands higher legal fees. Clients need to confront the reality that although there may be grounds for divorce, and a desire to no longer be married, the cost of litigation might be insurmountable and they cannot afford the divorce. I like to tell clients that divorce litigation is akin to buying a Ferrari. If you really desire a Ferrari, you would go to a dealer and test drive the Ferrari, but you will not be allowed to own the Ferrari unless you pay a lot of money. Similarly, if a client really wants a divorce, has grounds for divorce, and really desires to sever the ties with the spouse, he or she cannot do so without an agreement unless they are prepared to pay a lot of money. Do not be the practitioner who commences matrimonial litigation in the hopes of a negotiated resolution. At the end of the day, you will only have an unhappy client and a large unpaid legal bill.
The Goals
At this point, the client needs to know that litigation or an agreement is not a goal. Tell the client the real goals: (a) An appropriate time sharing of the children, with the mechanisms for deciding major issues; (b) An appropriate amount of support; (c) An appropriate division of assets; (4) If necessary, protection from violence, abuse, or neglect. In spite of the client’s feelings for how these issues should be resolved, you need to review the rules, find out the facts from the client, and let the client make the final decision as to how to resolve these issues.
Custody
There are two aspects to custody, and it is often confused by clients because of our terminology. First, there must be a mechanism for decision making. Although joint custody is the preferred method, as studies show that children do better under joint custodial circumstances, it requires an ability of the parents to jointly decide major issues. Joint custody has nothing to do with the amount of time one sees the child, in spite of the common understanding to the contrary. In the event that the parties cannot make such decisions, or can communicate only in limited fashion, then sole custody would be appropriate and one parent would be designated to make such decisions. Sometimes through agreement (although generally not through litigation), there is “modified” joint custody where parents have an obligation to communicate and receive input from one another, but one parent makes the final decision in the event the parties are unable to agree. The second issue is time sharing, which varies greatly from judge to judge. As a general rule, the courts try to mirror the sharing responsibility for children that existed prior to the parties’ separation, or the custodial schedule that the parties have undertaken after separation and prior to any litigation.
Support
Obviously, there are two aspects of support: maintenance and child support. Maintenance is what used to be called alimony, and is called spousal support prior to divorce. The results with respect to maintenance are difficult to predict absent of knowledge of the judge and the amount of equitable distribution.
When experienced matrimonial lawyers lecture to judges, they often give hypotheticals in terms of length of marriage, incomes, children, etc. and ask the judges to give us their impression concerning the duration and amount of maintenance. In a room of one hundred judges, the chances are no two judges will give the same answer.
Child support is a little more certain until you get above the $130,000 cap of combined income as it is driven principally by income. However, an analysis should be made of the maximums and minimums, and the “add-ons.” The client should understand from your professional opinion what a reasonable offer might be within certain parameters.
The client should know that custody and support can be resolved through applications to family court which is usually far less expensive than divorce litigation, and does not require proof of fault or filing fees. That option must be explored. The disadvantage is obviously that it does not divide assets, and allows titled spouse time to dissolve assets or minimize the value of a business or income. As Johnny Carson once said, “The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” That being said, you do not want to go to any court and get less than is being voluntarily offered.
Equitable Distribution
There are two kinds of assets in the world: marital and separate. There is a presumption that something acquired during a marriage is marital. Separate property consists of assets acquired prior to the marriage, exchanged for separate property assets, inheritances, the proceeds of personal injury, property so designated in an agreement, and gifts other than from a spouse. After reviewing the facts and circumstances of the case, including whether any licenses or degrees were acquired that enhanced earning capacity, the client can be advised of the likely scenario concerning the resolution of equitable distribution. The basic rule is that marital assets are sold to pay marital debt, with the exception being the marital home, which can be sold as late as a child graduating high school or attaining the age of 18.
Conclusion
The initial interview is the most critical aspect of matrimonial practice, and not only sets the tone for the ultimate resolution of matters, but allows the lawyer to size up the client as to realistic expectations and a perception of value for your services. The matrimonial lawyer’s practice is defined by the clients turned away more than the clients accepted. You do not wish to represent crazy people. You do not wish to represent people with unrealistic expectations. However, nothing is more satisfying than bringing a client from the initial interview to a successful resolution of his or her matrimonial issues. If that does not make you happy, find something else to do with your life.
22 NYCRR 1400.3
Laumann-Billings, L., & Emery, R. E. (2000). Distress among young adults from divorced families. Journal of Family Psychology, 14, 671-687; Baserman, R. (2002) Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-analytic Review. Journal of Family Psychology, 16:1.
Williams v. Boger, 33 A.D.3rd 1091 (Third Department, 2006).
Domestic Relations Law §236B(1)(a)
Family Court Act §412
The amount of Equitable Distribution is a factor in determining maintenance. Domestic Relations Law §236B(6)(a)(1)
Domestic Relations Law §240(1-b)
Batease v. Batease, __ A.D.3rd __ (Third Department, March 25, 2010)
Domestic Relations Law §236B(1)(d)
Griggs v. Griggs, 44 A.D.3rd 710 (Second Department, 2007).