Robert and Kim were getting divorced. They were generally amicable and had discussions on most of their issues. They were in an agreement that they would have equal joint custody of their two children. They agreed that their assets should be split equally and that the house would have to be sold in the foreseeable future. As they had approximately equal incomes neither sought alimony from the other. And they agreed that neither would pay child support to the other and they would share equally in the expenses for the children.
They had a few areas of disagreement. Kim wanted the right of first refusal whenever Robert was going to leave the children with a babysitter or his parents. Robert was not in agreement because it would involve Kim in his day to day life with a loss of privacy. They did not agree on being obligated to pay for college. They needed to have some more discussions to work out the details.
Kim had a close relationship with her parents. Although they knew nothing about divorce law, they worried that Kim might be conceding too much. They didn’t know what but were influenced by the fear that often surrounds divorce discussions. They urged Kim to get a lawyer to represent her, so she wouldn’t be disadvantaged. One of their friends had recently had a rancorous divorce and they encouraged Kim to consult with this lawyer. Kim went to the lawyer who listened to Kim’s description of the state of the divorce and suggested that he prepare a proposal that incorporated Kim’s preferences on the minor issues remaining. He asked for a $3000 retainer which was non-refundable and instructed Kim to have no more discussions with Robert until the proposal was complete.
It took the lawyer four weeks to complete the proposed settlement agreement. It was sixteen pages long eighty percent of which was standard “boilerplate” verbiage that most final agreements contain. The parts that actually addressed the Child related issues were two paragraphs. The fee for preparing the agreement was $1300. received the proposal, he was already frustrated by the delay and Kim’s refusal to discuss the issues until her lawyer finished the proposal, and he was stunned. He had long thought that they could work out their differences without incurring legal fees. But now his anxiety was triggered by the complex language in the proposal. Although he understood Kim’s position on the children, he was unsure of the meaning of all the other verbiage. To “protect” himself he felt he now had to hire a lawyer. The lawyer he consulted did not like the other lawyer and told Robert his wife’s lawyer was not to be trusted. He suggested that he draft a counter proposal. He asked for a $2500 retainer and used $1000 of it to draft a counter proposal including all the standard boiler plates. The couple had now laid out $5500 they could not afford to pay for two lengthy documents they didn’t need.
So, what should have happened? The written proposal should have been less than two pages long. In simple English it would have described the areas of agreement and disagreement and proposed a meeting with a mediator to resolve these minor issues. Any competent mediator could have resolved the issues in less than two hours of work at a cost of four or five hundred dollars. Then, any attorney could have prepared a formal separation agreement incorporating the agreements. That should have cost less than a thousand dollars.
Because the first lawyer had chosen to prepare a full agreement to justify a large fee the second lawyer was set up to do the same while assuring the client that this was the way to go. As a result, after several meetings and phone calls the attorneys and their clients reached the same agreement that would have been reached in mediation. The total cost was $11,000.
What is the lesson here? If you want a lawyer’s help preparing a proposal, insist on two things. First, any retainer should be refundable if all the time is not used. Second, any proposal should be in simple English and should not include all the “boilerplate” typical of a final agreement. The lawyer’s insistence on preparing a full agreement in the proposal stage serves no purpose other than enhancing legal fees. And because it includes so much technical language, it renders the couple unable to continue discussions that can lead to agreement. Instead of facilitating resolution it retards it. When you hire a lawyer, be aware that you must be proactive in holding the lawyer accountable. Do not assume the lawyer puts your interest first.