Does Having Familiarity with The Judge Help an Attorney Negotiate a Contested Divorce Case?
In the greater New York City area, Judges (assigned to the Matrimonial Parts) often change once every three to five years, so it’s not as though you can get great familiarity with any given Judge. But let’s put it this way – I would rather be in my element, know the court staff, and know the Judges than go to a courthouse where I don’t usually practice.
For example, here in Westchester, we get a fair number of cases where an attorney who practices in Manhattan represents the other side. The attorney coming up from Manhattan will be familiar with the Manhattan Judges and how things work there, but they may not know how things work in Westchester.
Every court and Judge works differently, so you will not be able to maneuver as well as a local attorney unless you’re familiar with how a particular Judge likes to do things.
I’m very open about the fact that you need to consider whether your attorney is coming in from the outside regarding your decision about who you hire. If I have a potential client come into my office in Westchester or the Bronx asking to retain me for a case in Brooklyn, I’m honest. I tell them I don’t usually practice there, but I have handled cases there and am happy to help them if they’re comfortable with that.
Some clients are actually looking for an outside attorney because they think if an attorney regularly practices in a particular county, they’re not going to put up much of a fight. They believe their attorney wouldn’t want to ruffle the feathers of somebody they have to work with frequently.
Whether this is true or false as a general proposition, I can’t say. It’s all dependent on the attorney that you hire. As a potential client, it’s up to you to “interview” your potential attorney and make sure they’re the right fit for you.
There’s nothing wrong with asking a question like, “Are you the type of attorney that will put up a good fight if a fight is needed in my case?” If the attorney’s answer is yes, and you think a fight will be needed in your case, you’ll have your answer – irrespective of where the case is.
What Is Important for A Divorce Attorney To Know About A Client’s Goals Before Beginning The Negotiating Process?
As an attorney, I want to know what my client wants on each issue. I try to go through every single issue with my client asking questions like, “What is your ideal outcome on one hand, and then what are you willing to accept on the other?” This way, I know their wants and needs.
For example, if you’re looking for alimony or spousal maintenance, I will explain the hypothetical calculations. Say you ideally want more than that hypothetical amount. As your attorney, I want the client to see the top-end number s/he is seeking for spousal maintenance.
Then I can say, “Okay, that’s what you ideally want if the case goes to trial. What are you seeking for settlement purposes?” Maybe one know, maybe one doesn’t know. At this point, it’s the role of an attorney to help guide the client.
Sometimes, this guidance takes the form of figuring out a projected budget. For example, if you are separating from your spouse, your attorney should discuss how much money you make on a net pay basis, find your current and projected expenses after separating, and determine the gap between the two. From there, your attorney can help you figure out the amount you would need in spousal maintenance to bridge the gap.
It’s important to note, however, that an attorney shouldn’t push clients too far in any direction. If that happens, they make the client’s decision and overstep boundaries. Attorneys should guide clients in the decision-making process, but they shouldn’t push to make a decision for the client.
Do Most Negotiations In Contested Divorce Cases Happen In Person, By Phone, Or Over Video?
Contested divorce negotiations happen in various methods, especially in the post-pandemic world. People are moving a lot more towards using the phone or the internet for conferences than they did in the past.
Before COVID-19 hit, we did more four-way settlement conferences in-person than we do today. I’ve only rarely had a four-way in-person settlement conference in the years since the pandemic.
Usually, the initial discussions occur via email, letter, or phone. This is so the attorneys can try to feel out the overall positions of the parties and see whether everyone is in the same ballpark.
If the parties aren’t in the same ballpark, I don’t want to waste more of your time and money pursuing a settlement. A Judge will need to step in that case. However, if the parties aren’t too far away and it looks like we can pursue a settlement, we step in with a counter-proposal to see if we can find a middle ground.
Sometimes it’s beneficial to state your counter-proposal and express the rationale for it. Consequently, you wouldn’t merely say, “Well, my client wants 5,000 a month in alimony as a counterproposal.” Instead, you would say, “My client is seeking $5,000 a month in spousal support as a counterproposal, and the reason is that we’ve figured her projected budget based on her net pay and this covers the gap between her net pay and her projected expenses. Therefore, we can’t accept less than $5,000 a month.”
Either the other side will or will not agree. You then have two options: Set up another phone conference, or four-way conference (via Zoom or in-person). If the opposing side refuses, you’ll have to go to file for a contested case to have a Judge assigned to the case.
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