As a lawyer practicing in Family law, the change I see in my cases between the housing boom and the housing bust is staggering. Remember when your client was not concerned with money because of all the equity in the marital home? And when, at the end of the day, both parties would be financially secure after selling the house the day after it was put on the, market by splitting the six figure gain? Those days are no more.Today, as family lawyers, we have to be careful to protect ourselves and our clients in today’s economic climate.
For the practitioner, obtaining a sufficient retainer to secure your fees through the entirety of the case is crucial as I am seeing that a charging lien is often only worth the paper it’s typed on. Because of the housing crisis and the economic downturn, the marital home does not have the equity to provide security or is already in foreclosure. Added to that is the large number of today’s litigants are “judgment proof” or have already been referred to your favorite bankruptcy attorney down the street. I am also experiencing a large number of clients who cannot afford my services. They have no money for a retainer, can’t borrower the money and have no other option but to handle the divorce pro se. As we all know, going “pro se” is not good for the prospective client, the children involved, or the court system. From the attorneys prospective, it’s difficult to accommodate the adversary pro se litigant who is unfamiliar with the Rules of Evidence. I won’t even mention the difficulty to responding to allegations contained in a “letter” Answer and Counterclaim. An attorney’s pro bono work is important and we are all required to perform pro bono work on an annual basis. Pro bono service has been stressed most recently in the forum and the practice of foreclosure defense, but we cannot overlook that it is of the utmost importance in family law. A pro se litigant can leave a significant mess to clean up behind their ill guided and turbulent travels through the family law system, leaving their children at risk and their finances in turmoil. These messes are more expensive to clean up than having a competent attorney steer them through the procedures. Personally< I am committed to having one active pro bono family law case which is referred to me through Legal Aid of Manasota at all times. I encourage every family law attorney to commit to the same. I have found most pro bono clients to be greatly appreciative, which appreciation is often worth more than a fee.
Another aspect of this economic climate that I fond “troubling” comes in formulating Marital Settlement Agreements in which the children are taken care of first and foremost, and thereafter the financial future of my client is secured. The 401Ks have been depleted, there is no equity in the marital home, no availability of a home equity line of credit and credit cards are charged to the limits. There is often so little money to work with that the family law practitioner’s perspective has to become one of mitigating the damages as opposed to spreading the wealth.
I was dismayed the first time I had a mediation in which it was discussed that my client would let the other party stay in the marital home until the sheriff locked the door. But it has become all too common to negotiate terms of agreeing, that both parties would default on the mortgage, lose the house and share in any deficiency judgment. I’ve found that I have to educate myself on the concept and procedure of foreclosure and collections to be able to completely explain and counsel my clients as to the ramifications of such agreements. I also find it a good idea to refer them to a colleague who is practicing foreclosure defense for at least a consultation prior to mediation.
We see glimmers of hope in the market, with houses selling and stocks doing better. I certainly look forward to the days of economic well being, rocketing investments and truckloads of equity, and until then there is a lot more to consider than in the past.