Can You (Should You) Change Attorneys During Your Divorce?

You walk out of the court room with a sinking feeling in the pit of your stomach.  Your case just got continued for what seems like the hundredth time. It’s been dragging on for well over a year. Your divorce lawyer has doesn’t seem to care.  He told you not to worry. Now you’re wondering whether a different attorney might move things along more quickly. Does it make sense to change attorneys during your divorce?

Figuring Out the Problem with Your Divorce Attorney

Before you do anything rash, it helps to identify the problem with your divorce attorney. Why are you frustrated? What exactly is the problem? Is your case going too slowly? Are you not getting the results you expected? Are you not getting any results at all? Maybe the problem is that you don’t know whether you are getting results or not because your divorce lawyer never talks to you. Or, maybe you think your lawyer is charging too much. Whatever your issue is, if you want to address it effectively, you have to start by identifying it correctly.

Time for a Reality Check

After you know what the problem is, your next step is to figure out the source of the problem. Is your divorce attorney the problem? Or, is it you? (Ouch! Hang with me here. You may not want to hear this, but if you’re willing to be just a little bit self-reflective, it could save you thousands of dollars.) The divorce system, as a whole, doesn’t work the way most people think it does. You can’t just waltz into a court room and tell the judge your story the way you would tell it to a friend in the bar. Unlike the divorce court on T.V., people rarely get to speak to the judge, and only completely uncontested cases are resolved in 30 minutes or less. Cases often take months or years to wind their way through the system. In the meantime, lawyers go to court again and again in the same case, attending countless status conferences, hearings, and pre-trial conferences. It’s frustrating!So, when you’re trying to figure out if the problem in your divorce is your divorce lawyer, you have to start by assessing your own expectations. Is it realistic for you to have believed that your case would be done by now? Are your settlement demands out of line? Do you expect your lawyer to win every hearing? If your expectations are unrealistic, then changing divorce attorneys is not going to solve your problem. It’s only going to cost you more money, while leaving you just as frustrated as you are now.

How Do You Know What You Don’t Know?

If you don’t know whether or not your expectations are realistic or not, go to another divorce lawyer and get a second opinion. You may have to pay for a consultation, but even if you do, it will be money well spent. (A word of warning, though: Beware of the divorce attorney who promises you the sun, the moon, and the stars! If you are a celebrity, or you have a lot of money, any divorce lawyer you go to for a second opinion may be salivating at the chance to take over your case. If the lawyer you go to for a second opinion seems a little too critical of your current attorney, or seems to be promising you too much, take a step back. I know that talking to yet a third attorney is the last thing you probably want to do, but under these circumstances, it may be worth it!)

What if Your Divorce Expectations are NOT the Problem?

Once you’ve ruled out your own expectations as being the source of your problem, the next step is to take a good, hard look at your attorney. If your attorney is doing any of these things, then changing attorneys during your divorce might make sense:

• Not returning your phone calls or voice mails within a couple of days, or ever!
• Consistently missing court appearances.
• Not letting you know what is happening in your case.
• Telling you s/he will do something and then not doing it.
• Yelling at you, calling you names, insulting you, or making you cry.
• Refusing to send you a bill so you can see how your money is being spent (or how much you owe!).
• Doing something else that causes you to lose confidence in your attorney.

You might also want to change attorneys during your divorce if you and your attorney no longer see eye-to-eye on your divorce strategy, or if you just don’t trust your attorney any more. Remember though, no matter why you change attorneys during your divorce, doing so comes at a price.

What Happens if You Change Attorneys During Your Divorce?

Just because you’ve determined that it’s time for you and your divorce attorney to part ways, that doesn’t mean that doing so will be easy – or cheap! If your case is in court, you may need permission from the judge to fire your attorney. While most judges will readily grant your request, if you’ve got a trial date coming up soon or, worse yet, if you’re in the middle of a trial, the judge may be reluctant to allow you to let your divorce lawyer go. Before allowing you to dump your divorce lawyer, the judge may require you to agree that your trial will proceed as scheduled, even if you don’t have a new lawyer by the trial date. While you may think that’s not a problem, a lot of divorce attorneys will be unwilling to take over a case that is going to trial in a week or two. So, unless you’re prepared to try your case yourself (which is NEVER a good idea!) changing your divorce attorney at that point may be rough. Even if nothing is happening in your divorce case at the moment, changing divorce lawyers mid-stream will cost you money. How much it costs will depend on how complicated your case is and how close you are to trial or a major hearing.

The Cost of Changing Attorneys During Divorce

Your new lawyer will have to review everything that has gone on in your case up to that point. S/he will have to go through all of your financial documents, and your spouse’s financial documents. Of course, you will have to pay your new lawyer to do all of that. If your divorce case has only been pending for a few months then switching lawyers may not cost you all that much. The same thing is true if your divorce is relatively simple. But if you and your spouse have been locked in battle for years, or your case is complex, then paying a new divorce attorney to spend days going through your file can be expensive. Remember, too, that your new attorney is probably going to want a retainer before taking your case. Depending upon your case, that retainer could range from a few thousand dollars, to tens of thousands of dollars. If you don’t have that kind of money to give a new attorney, you may have trouble hiring one.

What if Your Attorney is Leaving the Law Firm?

If your divorce case is being handled by an attorney who is leaving the law firm that represents you, you have a different kind of problem. Your lawyer may have been doing a great job, but now you’ve got a dilemma. Do you follow the lawyer who has been handling your case? Or, do you stay with your law firm (which effectively means you will be getting a new lawyer)? Like all good divorce lawyers, I will tell you that the answer is: it depends. Obviously, if you didn’t like your lawyer to start with, your decision is easy. But, if your lawyer was doing a good job, and you were satisfied with him/her, then you may feel like following that lawyer. Before you make any decision, you’ve got to get the facts – including the facts related to money. If you stay with your original law firm, are you going to be billed for the time it takes a new attorney to review and get up to speed in your case? (HINT: If you don’t know the answer to that question, ask now!) If you have an unused retainer with your original firm, what happens to that? Will the old firm turn it over to the lawyer who is leaving? If so, then going with the new lawyer becomes much easier. Or, will you have to scrape together another retainer if you follow your lawyer? All of these questions can affect your decision. You’ve also got to think about the state of your divorce. If your case is close to trial, then staying with your original law firm might cause your trial to get postponed. If you don’t have a trial date, or it’s far away, then getting a new lawyer might not matter as much.

Figuring it All Out

The bottom line is that changing divorce lawyers before your case is over is a big decision, and not one to take lightly. At the same time, if you have a good reason to change attorneys during your divorce, then NOT making a change can be a big mistake, too. Unfortunately, there are no easy answers. If you’ve gotten all the facts, and gotten a second opinion, and you’re sure that the problem is your attorney and not your expectations, but you still can’t decide what to do, then maybe it’s time to do a gut check. Obviously, on some level, you’re questioning your attorney.  If you weren’t, you wouldn’t even be thinking about making a change. So, if all else fails, trust your gut.