Staying Alive: Warning Signs
For the Matrimonial Practitioner

By Charles C. Abut

SOONER OR LATER, every matrimonial lawyer encounters the case which becomes "impossible" to resolve.  Experienced divorce attorneys look for tell-tale signs, and identify them at the outset.

Naturally, no client and no case is perfect, and every situation presents problems to varying degrees.  However, an attorney's diagnostic ability to identify difficult issues early on has become an indispensable tool for the successful management of any family law practice.

This article presents a matrix of key "red flags." To the fullest extent possible, presence or absence of the following problem areas should be thoroughly investigated, before representation commences.

Sexual/Physical Abuse of Children.  There is no issue more difficult than child abuse.  In some cases, ensuing litigation results in criminal proceedings; other cases may result in ancillary litigation pertaining to kidnapping, perhaps in multiple jurisdictions.

Domestic Violence/Assault or Battery. Cases with a history of physical or other domestic violence will present a number of attendant problems.  Where domestic violence has occurred in the past, it is likely to occur again.  Litigants with a history of physical violence against a spouse have even been known to extend the violence to the spouse's attorney, given sufficient "provocation."

Criminal Activity. With increasing frequency, matrimonial cases may reveal activity (by one or both spouses) that is illegal. Experienced practitioners have encountered facts giving rise to crimes ranging from civil or criminal tax fraud to hidden or concealed assets, “ off shore" accounts, and illicit enterprises.

Serious Mental Illness. Either the proposed client or the adversary spouse may have a history of serious mental illness.  This may involve prior institutionalization, suicide attempts or substance abuse, ranging from alcohol to dangerous controlled substances.  To what extent have mental health professionals been involved?  Is either party currently under psychiatric treatment or being treated with prescribed medications?

Financial Distress. Some litigants engage in "divorce planning." In some cases, such "planning" may involve "transfers" shortly before the filing of a divorce action.  There may be other questionable activity, such as newly incurred loans, liens, or a pending or contemplated bankruptcy filing. Even without such activity, the attorney may be presented with a situation in which there is a genuine economic collapse.  You should consider whether the matrimonial case has become the arena for a terminal financial war.

The Difficult Adversary. As all family attorneys should know, there is a vital distinction between zealous advocacy, on the one hand, and frivolous/obnoxious litigation, on the other.  If you can learn who will be representing your client's spouse, you may be able to determine whether your potential adversary is litigious or a nit-picker or given to discovery obfuscation and other abuses.

Inability to Pay Legal Fees. Where the client is unable to fund a matrimonial action which is likely to continue, the lawyer who accepts the representation should do so, with the understanding of the likelihood of being in the case for the long haul.  In some jurisdictions, the court may not grant a motion relieving counsel, on the sole ground of non-payment.  If the initial retainer is inadequate, and if the retainer represents the last of the client's savings, will further legal fees be forthcoming from the adversary spouse?  Will there be a third party who is willing to underwrite the client's fees? Or will the attorney become an unwilling and/or unwitting lending agency for the client?

You cannot avoid all of these problems, all of the time.  But if you do your homework early on, and screen your potential cases by asking the tough questions, you may discover these "red flags;" in such instances, you may be well-advised to turn down cases which contain too many of these warning signs.

Although not as serious, you should also adhere to two time honored safeguards, not found in any legal treatise but familiar to most experienced matrimonial attorneys:

Rule 1: Avoid becoming the client's "third attorney," particularly when you know that your predecessors are credible, reasonable and experienced practitioners.

Rule 2: Beware of the client who arrives at the first meeting, bearing multiple shopping bags of documents, or several cartons of files, with overwhelming eagerness to explain to you, in chapter and verse, every detail of how each transaction was previously mishandled.

Forewarned is forearmed.