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Anything more I should be doing on my pro bono divorce case?

I'm handling this myself, basically as a solo. I have some d aspiretoretire08/25/17
Might seem obvious, have you tried reaching out to OP and ha thirdtierlaw08/25/17
Thank you for the advice. This is pretty in line with my cur aspiretoretire08/29/17
Jurisdiction? And get a Property Settlement Agreement dis isthisit08/25/17
Colorado. Thanks for the advice. Any advice on above q aspiretoretire08/29/17
Find opposng party's employer and subpoena paychecks from th themapmaster08/25/17
Thanks for the response. If he readily provides me anything aspiretoretire08/29/17
Divorce cases never end, because of the fraud of not disclos sanka08/25/17
I'm working on building my practice in a pretty different ar aspiretoretire08/29/17
If your client is entitled to spousal support, figure out ho guyingorillasuit08/29/17
"One asset commonly overlooked is retirement accounts." onehell08/29/17
I'd be hesitant to not explore whether or not there is a ret thirdtierlaw08/29/17
I don't understand this thread. Any non-disclosure of an sanka08/30/17
When you have a low-asset case in which one or both parties guyingorillasuit08/30/17
This is good advice. I also do the hand off to the attorney thirdtierlaw08/30/17
I am not sure that the judge would appreciate me making a fr aspiretoretire08/31/17
Subpoena the employer's records. guyingorillasuit08/31/17
thank you for all your advice aspiretoretire08/31/17
In a recent case, opposing counsel wanted my client to reque cranky08/31/17
aspiretoretire (Aug 25, 2017 - 3:26 am)

I'm handling this myself, basically as a solo. I have some divorce experience as a para, but it's my first divorce case as an atty. Family law isn't my main practice area. I primarily work on large and long-lasting cases, primarily in Federal court. I know the law reasonably well, and have all the treatises, etc. Basically what I am not up on is the procedure for a such a proceeding, and what (if anything) I should be doing ahead of time.

Permanent orders & hearing is in about 2.5 months.

Assets are relatively low, and client is very indigent. No adult children. Opposing party (OP) is pro se. Only income is opposing party's job and SSI. OP is completely cooperative with me, but barely literate.

Basically, is there anything I should be doing besides getting all of the relevant financial information from opposing party? Figured I'd basically get all this basically via informal discovery, come up with a plan for favorable asset distribution and maintenance, prep client for mediation (court ordered), and go into trial.

Is there anything one would normally do in such a case? I've also never litigated against a pro se party in this kind of a court. Formal discovery seems like it would be a waste of time... Would you normally depose or send interrogatories to anyone in this kind of a case? Any pre-trial motions? I honestly can't think of much that would help here...

Thanks for any help. I do want to do a good job for the client but figuring this out basically as a solo is a challenge. Also any more resources that might actually tough on the nitty gritty

Again, thanks for any help or advice

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thirdtierlaw (Aug 25, 2017 - 6:29 am)

Might seem obvious, have you tried reaching out to OP and hammering out an agreement prior to mediation.

If it's a low asset divorce with no kids, it seems silly to drag it out any longer than necessary. But I understand how it happens. I've had a client end up paying me $6k in legal fees because he refused to believe me that a judge wouldn't award him his wife's laptop (~$300), that she brought into the marriage, and when they had split all costs of living for the 3 months they were married... that was an embarrassing final hearing for me.

I've found informal discovery is typically sufficient in these things.

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aspiretoretire (Aug 29, 2017 - 3:27 am)

Thank you for the advice. This is pretty in line with my current plan.

One question, is there any reason I should be filing anything discovery related with the court and/or sending official requests for admission/interrogatories to OP at all? It feels like there could be strategic advantages if things ultimately do not reach any kind of settlement, and the discovery deadline is approaching next month. Or is it sufficient to tell the judge we called and emailed (with email reflecting contents of phone call), and that he responded in such a way. For example, if he were to change his position at the permanent orders hearing.

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isthisit (Aug 25, 2017 - 7:55 am)

Jurisdiction?

And get a Property Settlement Agreement disposing of assets and debts prior to showing up to court or mediation.

Assuming OP is on board, you can show up to mediation with a fully signed & notarized copy of the Agreement for the mediator and let them know that property distribution, debt allocation, alimony, support, etc. has been taken cared of prior to the proceeding by both parties.

Wham, bam, here's the factual ma'am.

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aspiretoretire (Aug 29, 2017 - 3:27 am)

Colorado.

Thanks for the advice.

Any advice on above question I just posed to thirdtierlaw above?

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themapmaster (Aug 25, 2017 - 9:14 am)

Find opposng party's employer and subpoena paychecks from them, if you need to verify his income. interrogatories are okay if they're really simple like asking him to identify all his financial accounts and other limited, simple questions. Shouldn't take more than a half hour to draft. you should be able to request that he produce his last five years of tax returns and if he doesn't, I think a judge would be upset because it's not hard to do, even for a pro se and illiterate litigant. Of all the discovery tools in this situation I would actually find depos least appropriate because of the expense and high chance of getting little or nothing useful from it

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aspiretoretire (Aug 29, 2017 - 3:32 am)

Thanks for the response. If he readily provides me anything I ask when I ask via phone call/email, is there any real reason to even draft official interrogatories and requests for admission? He is generally cooperative with me (much to my surprise, but obviously my first case of this sort).

He disclosed 1 year of tax returns and current year's paystubs readily in his mandatory financial disclosures. They are a few months old, so I will probably ask to update him.

His current year's income is higher than previous tax returns if annualized, so I'm thinking on leaning more heavily on his current paystubs. No reason I see to subpoena anything?

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sanka (Aug 25, 2017 - 10:06 am)

Divorce cases never end, because of the fraud of not disclosing all income and assets to the court.

Cars, etc. disappear into garages of extended family and friends.

Employment income dissolves into non-disclosed cash or barter income.

If the source of income is union or government, that helps.

While you see yourself as a "full service" lawyer, you better get the parties get their notarized list of division of souvenir collector spoons, etc. filed ASAP, and get out.

Any divorce less than $2m is not worth your degree.

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aspiretoretire (Aug 29, 2017 - 3:34 am)

I'm working on building my practice in a pretty different area of law, but I actually really enjoyed my divorce/family law experience when I was a paralegal. I like the human element, which I get almost zero of in my bread and butter practice - all corporate entities and rarely even meet people in person.

I wouldn't mind taking a high value divorce once I know what I'm doing, but for now I'm content working with indigent.

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guyingorillasuit (Aug 29, 2017 - 12:33 pm)

If your client is entitled to spousal support, figure out how much your proposal should be for. Have her fill out a schedule of all her ongoing expenses, and see if it would be fair to have OP pay for some or all of them. This will also depend on whether this is a long-term or short-term marriage. If OP is a wage-earner (i.e. no non-wage income), get his paystubs for the last few months, and last year's tax return and W-2.

One asset commonly overlooked is retirement accounts. OP may have a 401(k) he forgot about, or a small pension he vested into a long time ago. Likewise, your client could have the same.

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onehell (Aug 29, 2017 - 2:10 pm)

"One asset commonly overlooked is retirement accounts."

True, but QDROs are a specialized area most divorce lawyers in my area farm out to ERISA counsel. Is the juice worth the squeeze?

I'd put this one back on the client: What is more important to them, finding every last possible dime or just getting the divorce over with? It's not malpractice to let stuff go if the client is advised of the implications and decides that's what they want to do.

You can absolutely send him all the discovery that is consistent with applicable rules and law. Opposing party, being pro per, will probably not respond or won't respond adequately, and then you drag him in on an OSC and prolong the whole thing. Perhaps you find something, perhaps you don't. I think it's up to the client to decide what the objective of the representation is.

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thirdtierlaw (Aug 29, 2017 - 4:53 pm)

I'd be hesitant to not explore whether or not there is a retirement account. We don't personally do QDROs for the typical reasons, but many times we avoid that by balancing the retirement accounts against other assets.

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sanka (Aug 30, 2017 - 9:41 am)

I don't understand this thread.

Any non-disclosure of any income and assets constitutes a fraud on the court and the case never ends, unless the state is full of stupid judges...which can happen.

Retirement accounts often are huge, and only a stupid judge would overlook it.

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guyingorillasuit (Aug 30, 2017 - 11:39 am)

When you have a low-asset case in which one or both parties is/are self-represented, it frequently turns into a mess. One of the parties may fail to disclose a large pension because it his mind it has "nothing to do with his wife". When people think of assets, they immediately think of houses and cars, and not retirement accounts.

What onehell is referring to is farming out QDRO work to people who specialize in it. Most family lawyers do it, including myself and virtually everyone I know. However, farming out QDROs often turns into the dubious practice of "kicking the can down the road", which is where you tell the client "don't forget to get a QDRO", and close the case. This can create life-changing consequences for clients, who will inevitably forget. When retirement approaches, the ex can no longer be found, or the plan has been rolled over 15 times and all records are lost, or unadjudicated offset claims pop up out of nowhere, etc. It creates expensive, and unnecessary work just when the retiring person needs that money the most. This is why I try to stay with the case until the plan receives and accepts the QDRO, especially if my client is on the receiving side of the distribution.

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thirdtierlaw (Aug 30, 2017 - 12:40 pm)

This is good advice. I also do the hand off to the attorney I use for QDROs. This at least ensures that the process is started.

If I didn't many of my clients won't ever "get around to it." Especially if they are already emotional exhausted from a long drawn out divorce.

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aspiretoretire (Aug 31, 2017 - 1:43 am)

I am not sure that the judge would appreciate me making a fraud-based argument against a pro per. What would the argument even be?

At least half of the indigent financial disclosure forms I've seen (quite a few) are random scribblings on the form with math that doesn't add up, wrong lines added together, random things in random sections, etc. I also feel like so many people have a little bit of their paycheck auto-deposited into a retirement account and don't even know WTF it is. I've certainly had girlfriends have no idea what each line item on their paycheck meant.

In my case, turns out, the OP represented he has no retirement accounts in his mandatory disclosures. What can I really do about this or leverage this? I know he does have at least a tiny 401k and HSA based on his current paystubs, but it's a new job. Other than serving an interrogatory and explaining to him that he has to disclose all of these, what else can I do? Question him on it in front of the judge? I am not sure how "dishonesty" plays into equitable distribution? His taxes also do not declare any pre-tax contributions.

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guyingorillasuit (Aug 31, 2017 - 1:56 pm)

Subpoena the employer's records.

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aspiretoretire (Aug 31, 2017 - 5:46 pm)

thank you for all your advice

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cranky (Aug 31, 2017 - 6:25 pm)

In a recent case, opposing counsel wanted my client to request and get a letter from her old employer confirming that no 401k account existed. Well, voila, turns out my client did have such a retirement account and turned over some documents after lying that such did not exist.

Also, I suggest that even though it's pro bono (bless you, I would NEVER take on a divorce case pro bono), keep track of all your hours and expenses on the case, especially if you might be able to get atty fees awarded. It will help you if the client later turns on you and claims you "didn't do anything" for her.

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