TO LISTEN TO EPISODE 11, CLICK HERE.
Hi, everyone, and thank you so much for tuning in to the Divorce Field Guide. My name is Ani Mason and I’m a divorce lawyer and mediator, and I’m also the creator of this podcast.
Today, we are in Episode 11. We are going to be talking about, going to be doing a shorter episode on, what to expect in an initial consultation or meeting at the very outset of your divorce process.
I want to recognize first that, depending on what divorce process you are in, whether you are in mediation, collaborative law, settlement negotiation, or litigation, the first consultation in your process may look a bit different. So, what I want to talk about today is really more the commonalities, regardless of which process you’re in, of what you can most likely expect in an initial consult in that process.
BEFORE THE CONSULT
Let me start before the consultation actually begins and just give a couple of tips and things for you to be aware of.
It’s pretty typical when trying to schedule with an attorney or mediator to do so a week to a couple of weeks in advance, so you want to be mindful, if you have a time-sensitive issue or something that you really need to get in to see someone to speak about, that you don’t want to wait until, for instance, the week of to try to schedule with somebody. It’s not to say that that’s impossible, but just to give you a sense of what is typical. Try to schedule a couple of weeks out.
When you are reaching out to someone’s office to try to schedule with them, people’s practices are different, so they may or may not take scheduling calls directly themselves.
If, by chance, you are on the phone with the person that you are hoping to set up a consult with, they may or may not be willing to talk to you substantively about what’s going on in your case. People’s practices differ.
You may be on the phone with someone who’s very willing to hear the background of your case and to give you some general thoughts before setting you up for an initial consultation with them. Or, you may be speaking with somebody who is very willing to answer more administrative questions about their practice (e.g., what their rates are, what a consult costs), but they will not speak to you about the substantive issues of your divorce outside the context of a consultation.
Where you are in a mediation process, it’s not common that the mediator, individually, would be speaking to you about substantive issues in your divorce outside the presence of your spouse at the outset of the process.
So, that’s just something to keep in mind in terms of managing your own expectations about what you can hope for if you are speaking to somebody by phone to schedule a consult before the consult itself has actually begun.
When you arrive for the consultation, it’s typical in many offices that there will be a document or two for you to fill out. Nothing huge. Maybe a one-pager with some basic biographical data. Maybe they’ll take your payment information at the outset. Again, every practice is different, but these are just some of the things that you can expect.
If it’s important to you, for instance, to be able to pay by credit card, or to pay via a certain means, or to pay in cash, just clarify that with the office at the outset, that you can do that.
If a receipt is important to you, you want to confirm that they can give one to you, as well. Any office and any person should certainly be able to produce a receipt for you at the end of your consultation.
DURING THE CONSULT
Let’s talk a little bit about when you are in the session, in the initial consultation itself, what are the different topic areas that you can expect will be discussed in that session.
I’m going to go through these in no particular order, so your consult may not start here, but it will likely cover all of these topics.
Sharing Your Background
One super important area of discussion is background on your situation. That includes a number of things. It includes the composition of your family, how long you’ve been married, how many children you have, if you have kids.
It includes a history of your relationship, and I think this is a place where it’s common for people to struggle with, what is the right amount of detail to share. This is not a therapy session, but it also seems certain details about what’s happened in your relationship are relevant.
What I would say to you is if you have a concern or confusion there, flag that for the person that you’re meeting with, that you’re not sure how much detail is helpful, and ask for their help in guiding you if you’re meandering into terrain that’s less relevant, from a legal perspective. They should be able to help guide you in terms of that.
But it is definitely relevant for the person you’re meeting with in an initial consultation to have a sense for, not just how long you’ve been married, but how long have there been issues in your marriage. How long has divorce been a discussion? Has it been a discussion? Does your spouse know that you are seeking a divorce? Have you been to couples therapy? What worked or didn’t work there?
Sharing Financial Information
So, some basic history and timeline, and then, certainly, as clear as possible, of a financial picture of what your lives look like.
Now, it’s okay if you really draw a blank there and many people do. They’ve been in the dark financially. They don’t really know what their financial situation is. So, part of their divorce process will be figuring that out.
To the extent that’s the case for you, no problem. You can just share that with your attorney, and they will help guide you, or you could share it with your mediator, if you’re in a mediation process, and they can help guide you, in terms of what are the different documents and pieces of information that you want to be able to exchange so that you can really feel that you start to have more of a sense of your financial picture.
If you do already have a sense of your financial picture, that’s great. You will want to convey that as a summary to the person you’re meeting with, whether it be the mediator or your attorney.
A summary of a financial picture would include giving some sense of what your income and your spouse’s income looks like. If there has been any change in that in the last three to five years, giving some history for what the change has been. What it was like before, when it changed, and what it’s like now?
It also includes giving a very general overview of the different types of assets and debts that you are aware of that you have.
A large part of the divorce process is, typically, delving into and getting more details about these very issues. So, you are not expected, in an initial consult, to be able to say to somebody, “Well, you know, we have this asset, and it was worth $X on the day of the marriage, but now it’s worth exactly $Y.” No.
It’s just flagging for somebody and giving very ballpark ranges of what you have and what you owe is very helpful and relevant in an initial consult. It enables the mediator or the attorney you’re meeting with to give you legal and financial information that’s tailored to your particular circumstance, which is helpful and important.
If there is any complexity to your employment situation at all, that’s something that usually comes out in the first session. If you have been out of the workforce for a while, or you have recently changed jobs, or that’s the case for your spouse, that’s something that comes up in an initial consult. It’s relevant, as well, in tailoring the information about divorce, and about the law, and the divorce process that your mediator or your attorney will be sharing with you.
Certainly, talking about your kids, how old they are, where they go to school, any kind of health issues that they might have or that you or your spouse might have, is all part and parcel, and very relevant, as a basic background picture of what’s your situation, what are the challenges, what are the goals that you’re bringing to the divorce process? In sharing it, it enables the person you’re meeting with to really tailor the information they are imparting to you and to your situation.
Discussing Your Goals + Concerns For The Process
Another thing that comes up commonly when you are sharing your own background, the context of your situation, and what brings you to the divorce process is: What are some of the goals and the concerns that you have for the process?
These may be, in some cases they are, very time-sensitive issues. Like, there is a conflict around whether or not to enroll your child in a particular private school, and that’s something you and your spouse are in disagreement on, and you only have until the end of the month to send in your deposit to save their spot. That’s an issue that can come up and be important to people, they can be in conflict on it, and it’s quite time sensitive.
So, you definitely want to flag, in an initial consult, anything that has an urgency or a time-sensitivity to it. Anything that in the next few months you need to resolve, or need to have some guidance on, you definitely want to flag that for the person you’re meeting with.
Flag High-Conflict Issues
You also want to flag, in terms of identifying the issues that will come up in your divorce, any issues that you anticipate will be high-conflict issues between you and your spouse. That you already know that, for instance, you will want 50/50 custody and your spouse absolutely will not be on board with that.
It’s helpful to the person you’re meeting with, so that they can give you a realistic sense of: Okay, what are the different options? What’s the range of possibilities that could happen? If you decided to go to court, what’s the range of possibilities of what you could agree to out of court?
Again, this is all really in service of tailoring the information you’re getting in this consult, which typically lasts, I don’t know, maybe an hour and a half to two hours is an average consult. That sounds like a long time, on the one hand, but on the other hand, you’re addressing a ton of complex issues.
The more detailed and targeted you can be about the different challenges that you foresee in your particular situation, the more detailed and targeted the mediator or the attorney can be in responding to you and addressing the concerns that you’re raising.
Flag Issues of Concern or Importance
It’s also normal that you will have identified a list of issues that are of concern or important to you to raise with the attorney or the mediator in the initial consult. Then, in response to what they say, new issues may come up.
That’s completely normal, and you are not expected to come to an initial consult with a definitive list of all the only questions that you will ever have in your divorce process, or the only goals or concerns that will ever come up for you. This is very much an initial consult, as the name suggests, so you are providing and sharing the detail that you can, but don’t stress yourself out in feeling like you don’t have enough organized or put together to meet for an initial consult.
Many, many people come to their first consult knowing that they want to get divorced, and that’s about all they know. They don’t know the different processes, which if you listened to the first nine episodes, you are really ahead of the game there, so that’s great. If you haven’t, fine. You don’t need to. You can show up to a consult with no information and no preparation, and the person you are meeting with really should be able to help orient you, and give you a basic understanding of the process, and of the different issues that could come up.
If you have the time and the bandwidth to organize some of the issues from your perspective, I think it does help target your discussions and use the time that you’re paying for as productively and effectively as possible.
Overview of Divorce
In addition to talking about from your perspective, what your background is, and what the different issues of importance to you are, different concerns are, there’s also a substantial amount of time, in a first consult, that includes or involves your attorney or mediator giving you a basic overview of the divorce process so that you understand it. Giving you a basic sense, a very high level sense, of what divorce law says in your particular area, and also tailoring that discussion of divorce law or what divorce law “says” to the particular circumstances that you have described are relevant for you.
It’s also very common that the person that you’re meeting with, especially if it’s an attorney, I would say – if it’s a mediator, this is less common – but if it’s an attorney, it’s very common that they will give you some targeted advice that’s often relevant to the outset of a case.
So, for instance, if you have not raised the subject of divorce with your spouse, or it’s been discussed, but they don’t yet know that you’re proceeding, that you’re moving forward, that’s something that a lot of people may want to discuss. How do I broach this with my spouse? What do I say? Do you contact them? Should I say something? That’s something that’s common to talk through more with an attorney in an initial consult.
You would not really be discussing that with a mediator in an initial consult because they wouldn’t be meeting with you, most likely, they would not be meeting with you separately.
And/or, if you have a particular conflict like the one I mentioned about, for instance, it’s really important to you that your child continue in the private school that they attended last year, and your spouse is really opposed to that. And you have a window within which to confirm whether they are or are not attending, and you’re in conflict around it. You may need some targeted advice, even in the initial consult, about what steps do I take to address this particular time-sensitive conflict?
So, that’s a little overview of the different subject matter that you can expect would be talked about in an initial consult.
Answers You Won’t Get
You probably got a sense of this from Episode 9, but I do want to flag that two of the most common questions that you will not get an answer to in an initial consult are: How long will this process take, and how much will it cost me? If you have confusion about why the heck that’s so hard for people to predict, you can go to Episode 9 and listen to some of my explanation of that.
Those are two of the more common questions that will come up, naturally, in an initial consult, and I want to flag for you that it’s unlikely that you will get a concrete, specific answer to them. You may get a range, but, more likely than not, you will hear that it’s very hard to predict how long a case will take or how much it will cost at the outset of a case, and that the average case takes between X to Y months or years and costs between $X to $Y.
PREPARING FOR THE CONSULT
A couple of tips as you prepare for an initial consult: make notes and take notes.
So, make notes in advance of the consult, if you’re up for it.
If you’re not, that’s fine. But, I think that making notes about, okay, what’s the background of my situation, the history of our relationship. They don’t have to be detailed; they could, literally, be on one page. Just some key dates, the date of your marriage, when things started to become more difficult. If you went to couples counseling, when you did that and for how long. When you started talking about divorce, if you have started that conversation. When you made the decision to separate and divorce, if you had made that decision. The kids’ names and ages. Where they go to school. What each of you does for work. What your financial situation is.
Just even a page of notes about that can help you when you’re in the moment of a consult, which is going to be, naturally, stressful for people. It’s a new person you’re meeting. It’s related to your divorce, which is a stressful topic for many people. It can be hard to keep in mind all of the different things and the details you want to share with the person you’re meeting with.
So, just making some notes in a low-stress setting at home, somewhere where you’re comfortable, can help you keep in mind and keep track of things that are important to you but you may forget to talk about in a consult.
This goes, as well, I would say, equally so for questions you want to ask.
It’s really common that people will come to a consult with a number of questions they want to ask. Then, sort of similar to the end of a job interview, when they ask if you have any questions for them, and you can’t think of anything, a lot of people are like, “God, I know I had questions, but I just can’t think of any right now.” That’s really common.
To solve for that, you might want to write the questions down, at least the ones that are really important to you and you want to make sure that you cover.
Then, in the session itself, if you can, if you’re comfortable doing this, many people find it helpful to take notes.
You don’t have to record every word that your mediator or attorney is saying to you, but just a real overview of what they described to you about the divorce process, what they described to you about divorce law, and what they described to you about your particular situation and how the law applies to it can be very helpful.
In particular, if you’re in mediation, and your mediator says something about the law or about the situation that raises a concern for you, but you’re not sure that you want to delve into detail about that in your mediation process just yet, you might make a note for yourself, flag it, to discuss what your consulting attorney outside the process. That’s really one of the best things about the role of the consulting attorney, is as you have things that come up in mediation and you feel like you want to get your bearings on them before you raise them in more detail in mediation, you can do that with your consulting attorney.
So, notes are very, very helpful.
Also, at the end of the session when you and the mediator or the attorney is clarifying, “Okay. What are our next steps?” making notes of that, both for yourself and for what the mediator or the attorney is saying are their next steps that they’re committing to do. That’s very helpful to make notes of, as well, so that you can follow up on whether or not they actually did the things that they said that they would do.
AFTER THE CONSULT
In terms of next steps after an initial consult, at the end of the consult, you’ll typically pay for the consult if you haven’t already paid for it upfront.
Then, your mediator or your attorney will send their retainer letter or their engagement letter (it’s called different things), the formal agreement around working with them, to you to review.
You’ll review it, you’ll ask them any questions about it.
And any time that is spent discussing questions that you have about a retainer agreement or a mediator’s engagement letter, whatever their agreement, their professional contract, is that they use with clients, should not be billed. You should be able to ask them questions about their agreement specifically, in a way that’s not on the clock, just for your information. And they will probably share that with you as well.
Then, you may get some homework. That is quite a substantial topic that we are actually going to kick over to Episode 12 to address, but suffice to say, there’s a lot of documentation, a lot of information gathering and sharing, that’s part of the divorce process. Even in the first session, at the end of the first session, many people are eager and ready to be given some direction by their attorney or mediator as to: What do you need from us? What should we be working on? What should we be putting together?
We will talk about that in Episode 12, but for now, thank you so much for joining me for Episode 11. I really hope that this episode on the initial divorce consultation is helpful to you, and I will look forward to talking to you in Episode 12.