Donna Marie Medina: Like any area of the law, domestic relations statutes and case law are constantly changing. An attorney who does this type of work, exclusively, or as the largest part of his/her practice, will keep current. We also deal with Family Court Judges. Over the years, we get to know and become familiar with vis-à-vis their policies. Therefore being able to predict an outcome, if the case is litigated, more accurately than would someone who processes a few divorce cases each year. Finally, family law lawyers generally get to know each other as well as other attorneys available for facilitation, mediation, or arbitration, as an alternative to trial.
After meeting with a client and understanding her particular situation, an experienced divorce lawyer will almost immediately identify the “right person,” to help resolve even the most difficult cases. Only when there is no reasonable settlement possible should litigants opt for a trial. A trial essentially removes the client critical input into some of the most important decisions in their lives. It also puts their fate in another person’s hands. Trials are expensive and exhausting for the parties involved. Rarely does a party emerge feeling she has “won,” in any sense of the word.
How can a potential client be best prepared for their first meeting with you?
Be prepared to disclose what they believe are marital assets as distinguished from those she might believe are “separate” property to which the other spouse has no claim. Having current asset values and liabilities (current financial account statements) would be helpful. Also have three (3) years of income tax returns. I ask my clients to tell me their story. Then I ask them the story that their spouse would likely tell me if he were sitting at my desk. Finally, I ask them to identify the most critical objectives that they are seeking to accomplish. We do this either by initiating or defending the divorce case.
What type of questions should a client ask of a potential attorney?
If a client has an idea of how they view their post-divorce life, i.e. where they will live, what the custody and parenting time arrangement would look like and what he/she views as an appropriate level and term of post-divorce spousal support (if applicable)—an experienced attorney should be able to predict whether the client’s expectations are reasonable or achievable. In my opinion, that is the most important question that an attorney can answer and the answer should be honest.
Also, methods of communication between the attorney and potential client should be discussed. Also, a reasonable time frame for completing the case should be discussed. Perhaps the most significant question (to the client) is, “How much will this cost?” Clients must understand that most divorce attorneys cannot predict with much certainty the overall cost, as so much is dependent upon unknowns, such as the other party’s expectations and who he/she will be represented by.
What type of questions do you ask your potential client during the first meeting?
First, the most important question: Is there any possibility of saving the marriage? Particularly when children are involved, or if the parties have not attempted counseling, I will suggest that a counseling session may be valuable. We have all had clients come in immediately after discovering that his/her spouse had had an affair—they cannot imagine that forgiveness is within them.
However, if the client is seeking divorce based on a single incident of infidelity—and I sense that the client’s disappointment in the deception is the overwhelming reason they are sitting at my desk—I will ask about the rest of the marriage, trust issues and where they see themselves five years down the road.
Other than that, if reconciliation has been attempted and failed, or if there are repeated instances of deception or abuse, then it will become clear to me that the time is right and the client should probably file. Again, it’s important that the client understands that any time a family falls apart and two households emerge from one, there will necessarily be sacrifices involved. Often, as lawyers, we must explain to clients that, regardless of their spouse’s history of not “adding value,” to the marriage—it does not mean she will leave the marriage with nothing.
What do you see as being the most common fight of high-conflict couples?
Access to the children and the interplay between the “overnights” awarded to the other parent and child support. Also, high-conflict couples often fight to the bitter end over the jointly acquired personal property. In reality, the value of the items is more often than not, simply not worth arguing over, let alone paying attorneys and arbitrators to settle these disputes.
What is the top mistake you see a lot of women make during their divorce?
Attempting to keep the children from the other parent, particularly when the former husband starts dating. This situation can cause unbearable grief for some women. Counseling helps with acceptance and, eventually, forgiveness. The ability to successfully co-parent is an acquired skill and both parents must work at it; if they cannot eventually achieve this goal, the children are the victims, even if it’s unintentional. I tell my clients that, in no case should they discuss the other parent’s shortcomings with the children.
What can and should a woman do if her spouse is spreading vicious lies about her in and out of the courtroom?
First, outside the courtroom: Unfortunately, it’s difficult to keep someone from talking. On the other hand, having evidence is essential. Most commonly today, this behavior occurs on social networking sites. They should be photographed and preserved. If the vicious lies are such that they will interfere with a person’s ability to find work or alienate their children from friends (in other words have consequences other than creating hurt feelings), it could ultimately affect the misbehaving spouse’s parenting time or have financial consequences.
Personal protection orders are available in Michigan. Many family law judges will sign orders prohibiting a party from speaking ill of the other party in front of the children.
Inside the courtroom: An experienced judge can generally identify an untruthful litigant. In these cases, the liar has much to lose. A skilled attorney can generally elicit the truth and demonstrate that the vicious lies are, in fact, just that. The party using such tactics, in court, is subject to sanctions and even a perjury charge.
Do you recommend mediation to your clients and can you explain what mediation is and how a person can best prepare for it?
In Michigan, mediation is mandatory if the parties cannot settle their case without a third-party’s help. A good mediator will insist that both attorneys summarize the facts of the case, in writing and in advance. They will also insist you speak with the parties and counsel separately, and have a broad knowledge base from which to draw on to design a settlement acceptable to both sides. Mediation itself is informal and a good process for determining whether a settlement is possible, even if the first attempt fails. The parties must understand the concept of “meeting somewhere in the middle,” and the necessity of making concessions on things important to his/her spouse in order to achieve or attain something of equal or greater importance to her.
What is the advice you would give a woman regarding the marital home? Such as, should she move out of it during the divorce and should she keep it in lieu of other marital assets?
Some of my colleagues will give contrary advice. However, I am very practical and attempt to ascertain, early on, whether the woman will be able to afford the financial upkeep on the home based upon her earnings and the child support and/or spousal support she is likely to secure. If not, and the home situation is volatile with a lot of arguing, dissension, etc. particularly when children are present, I attempt to address the situation with the husband’s attorney. If the husband wants the home, can afford it and will agree that the wife’s moving out is not going to prejudice or in any way affect her financial interest in the home, I see no reason for the couple to remain living together.
On the other hand, if the woman will be able to afford the home—and she wants it—then either or both parties have to adjust their conduct around the children or there could be some agreement to either “nest.” (i.e. rotate in and out of the home thus allowing the children to remain secure in their environment, or for the husband to relocate)
I rarely have a case where both parties want the home.
More likely is that neither does, especially with the decline in real estate values and “underwater” homes (mortgage balance exceeding fair market value).
All of this requires careful consideration, particularly when both are obligated on the mortgage and neither can refinance to remove the other from the underlying debt. Simply put, the question requires an analysis of the entire financial situation confronting the parties and the best way to resolve it. In other words, there’s really no “right answer,” to this question without knowing all of the details.
I know some attorneys tell women to NEVER, under any circumstances, move from the marital home or it could be viewed as a desertion or disinterest in retaining either the home or their equity. Given the law in Michigan, I don’t believe this is valid advice and the children could be collaterally damaged if exposed to escalating disagreements or even “the silent treatment,” between mom and dad.
If a woman feels that her spouse is neglecting the children or putting them in danger, what options does she have to ask for supervised visits and full physical and legal custody?
Another complicated question because there are, of course, instances of false reporting. On the other hand, if there is independent evidence of neglect, abuse or mistreatment, it may very well be grounds for supervised parenting time and/or full legal or physical custody. On the other hand, many parent-child conflicts can be remediated by a good therapist and all available resources should be used in order to make co-parenting effective after (if not during) the divorce.
Divesting a father of legal custody is rare but sometimes warranted. If by “full physical custody,” you are suggesting that dad would have no rights to see his children—this too would be rare—but I cannot say it never happens or is never the right result. All of these decisions have long-term effects on the children involved.
On the other hand, Judges who force parenting time on a child old enough to express a desire to not be with a parent will almost always be unsuccessful in the long run. A better choice is to offer resources designed to repair the relationship unless, of course, the parent’s poor conduct is longstanding, not simply a reaction to a divorced dad doesn’t want or to gain some sort of advantage in other aspects of the divorce, etc.
Mothers who claim that dad has never been a big part of the children’s lives and therefore should be essentially shut out post-divorce are going to have to show more than this fact to prevail. Intact families often divide the responsibility for raising the children with moms having the major role in nurturing, helping with homework, etc. This does not mean dad isn’t capable, but only that he may need some guidance and positive reinforcement or constructive criticism.
380 North Old Woodward, Suite 300, Birmingham, MI 48009
Years in Practice: 22
Is there anything else that you would like potential clients to know about you?
My availablity to my clients at all reasonable times and, in an emergency, at any time is very important to me. All phone calls are answered promptly. I am also generally the type of person who completes all the work I can do today. I try not to put things off until tomorrow. My objective is to work closely with my clients in an effort to achieve their objectives. I have a firm policy that anytime I am speaking or writing for a client, that the client has an advance notice of what will be submitted to the court, mediator or opposing counsel. I am very patient about explaining the process of divorce and what my clients can expect will occur. Nevertheless, I believe in taking a practical approach and cutting out unnecessary legal work—if the same results can be achieved in a more efficient and economical way.