We frequently receive telephone calls from potential clients asking, "What do you charge for an uncontested divorce?"
Unfortunately, this question is generally impossible to answer right off the bat. There are hundreds of variables which influence the cost of a divorce.
Sometimes, we get a call from a person who say he (or she) wants an uncontested divorce because "I've decided what I'm going to give her (or him)." Equally often, the other party has a somewhat different idea of what he or she is entitled to take from the marriage. What does this create? Conflict.
On the other hand, we get calls from people who say, "We've worked this all out. We just want a divorce." But, when we start asking questions about the division of debts, Qualified Domestic Relations Orders for the division of pensions and retirement funds, the refinancing of the mortgage on the house, etc., we find that the parties usually have not thought this through quite as thoroughly as an experienced Family Law attorney and that maybe there are major issues that have not truly been agreed upon.
"If we think we have it all worked out, can you represent both of us?" The short answer is "No!"
No one should believe that any attorney can represent both parties in a divorce action and the Kentucky Bar Association agrees with this position.
One attorney can, however, represent one of the parties while the other party can either proceed without counsel or, perhaps, engage an attorney only for the purpose of reviewing a settlement agreement prior to execution. This could save the parties a good deal of money in a low-conflict divorce case.
Please proceed with caution if an attorney promises to represent both of you in a divorce action.
You may think you can be a great lawyer for yourself but, to borrow a phrase from Abraham Lincoln, you'll have "a fool for a client". You cannot be dispassionate about your case any more than about your own surgery.
Divorce is expensive . . . expensive in a lot of ways. Emotional expense is very important and must be managed or it can dramatically affect the quality of your life. But the financial costs of divorce can be astronomical if you fail to obtain a fair settlement.
Before you decide to handle your divorce yourself or if you think your divorce is going to be "uncontested", please read the information below so you can fully consider whether this is something you are really competent to handle without experienced legal advice.
We know that a lot of people try to handle one of the most complicated financial and legal transactions of their lives without legal counsel. If their marriage has no financial matters of consequence -- great! But the place where most people fail to grasp the process is they simply do not know why they may need a lawyer.
Here's my answer to "What do lawyers do in a divorce?"
People often do not really know their own share of the marital estate and, even more often, have very little understanding of their spouses' property. Further, people often times fail to appreciate or know how to truly identify and/or label property in the numerous legal entities or fashions available. Is the property a sole proprietorship, corporation, LLC, S-Corp, trust, life insurance, cash value, frequent flyer miles, bonuses, stock options, bond, stocks, etc.
Any reasonably diligent attorney will attempt to identify all property which should be part of the marital estate or non-marital property which should be assigned to his/her client. The threshold questions are:
The latest edition of Graham and Keller's book, Kentucky Domestic Relations, specifically Chapter 15 ("Classification and Division of Property at Divorce"), provides an excellent discussion of the duty to identify and then classify property. Re-read Sections 15.1 through 15.14, unless you are absolutely confident of your understanding of classification.
Did you know the right to frequent flyer miles or to basketball season tickets or to country club memberships might be assignable or non-assignable assets? Do you understand how this fits in Kentucky's "functional approach"? Does Kentucky's functional approach primarily affect classification or value?
Are you properly classifying interspousal gifts as a good example for self-examination? [Clark v. Clark, 782 S.W.2d 56 (Ky.App. 1990).]
We've heard reports of an influx of Russian brides who come to America, get a lot of medical and/or dental work and then want a divorce. Many of their husbands then want their "investments" back. Another scenario spurring a good deal of discussion is whether breast implants and other cosmetic improvements (or at least the cost of surgery) are somehow divisible property in divorce.
We do not use these examples to be cute but, rather, to show how all major expenditures of marital funds (over and above normal living expenses) should result in marital property, a dissipation claim or at least a very good explanation.
When is "active participation" decisive in classification or do you have a valuation issue? [See Goderwis v. Goderwis, 780 S.W.2d 39 (Ky. 1989).]
There are thousands of other possible assets that must be considered, not the least of which include:
We are not saying you need to pursue every conceivable asset; we are saying every possibility needs to be considered.
Do you really understand transmutation? [See Bischoff v. Bischoff, 987 S.W.2d 798 (Ky.App. 1998), cert. denied, ___ U.S. ___, 1205 Ct. 175, 145 L.Ed.2d 148. (1999).]
After Graham & Keller, the next general reference book which should be in your library if you handle any kind of substantial estate cases is Brent R. Turner's book, Equitable Distribution of Property, 2nd Ed., West Group (2000), which explains the All-Property Model and Dual-Classification Model. The comparison of these two models in Chapter 5 is a comprehensive discussion of your duty to classify property. Failure to identify and classify property is an area where there is a great deal of failure to competently practice Family Law. It will be compounded if you do not know when and how the "onus" shifts during tracing. Is the client's father's farm a pasture or a subdivision in the making? How is income from non-marital property treated? [Contrast KRS 403.190(2)(a) against Sousley v. Sousley, 614 S.W.2d 942 (Ky. 1981).]
If the parties cannot agree, property valuations are usually performed by appraisers. This can include real property appraisers, personal property appraisers, forensic accountants, business interest appraisers, appraisers of rare or antique items and collectibles and other experts either agreed upon between the parties or appointed by the court to perform these valuations.