Different Options For Representation In Family Court

Show Topic

This show aired on April 2, 2017, and was hosted by Attorney David Enevoldsen. This show reviews the different options available to obtain legal services in a divorce or custody matter. Specifically, it looks at doing things on your own, using a lawyer for legal representation, using a legal document preparer, or using sets of pre-made forms.

Headlines

Headlines on the show looked at the controversy over Vice President Pence’s statements that he follows the Billy Graham Rule and re Tennessee’s challenge to the gay marriage decision by The Supreme Court of the United States in Obergefell v. Hodges.

Did You Know

This show introduced the Did You Know Segment and looked at in the 1700s a woman was legally considered to have ceased to exist as a separate person and was simply viewed as being under the coverture of her husband.

Transcript:

Announcer:                            The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney/client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here, and you should seek the advice of an attorney licensed to practice in your state.

Announcer:                            Welcome to the Family Law Report, the show that explores issues related to marriage, divorce, and children. Hosted by David Enevoldsen, practicing family law attorney in Arizona. Now, here’s your host.

David Enevoldsen:             Hello, everyone. Welcome to Family Law Report. I’m your host, David Enevoldsen, here with you every Sunday at noon on independent talk, 1100 KFNX. Here on Family Law Report, we talk about all the current topics of family law, and that can range everything from what’s going on in the political arena to just things as simple as how to work through the nuts and bolts of a divorce or a custody matter.

I am a practicing attorney. I work in the area of, not surprisingly, family law. And when I say family law, I mean basically anything that’s related to marriage issues, divorce issues, things related to fights over custody of children, child support, that sort of thing. I’m a partner at a law firm here in Arizona called Family Law Guys. We have offices in the Phoenix area and we have a Prescott office.

We don’t practice outside of the state of Arizona, but if you have an interest in calling us to schedule out an appointment, we can talk about your personal case. You can do so at 480-565-8680, or you can check us out our website at www.familylawguys.com.

On today’s show, we’re going to be talking about some of the various options you have for legal services if you are involved in some sort of a family law matter, and I have with me today a cohost who works with me. She’s an associate at our firm. Her name is Shelley Rosas. Shelley, do you want to say hi?

Shelley Rosas:                       Hey, good afternoon.

David Enevoldsen:             Oh, you can be more excited than that. Come on.

Shelley Rosas:                       No, I’m excited to be here, but David’s leading the show. I’m along for the ride today.

David Enevoldsen:             Right. So first up, we’re going to hit our current headlines in the news. The most recent thing I was noticing is there has been an assault on Vice President Pence and there’s been a whole bunch of … I’m sure there’s tons of assaults going on right now with all the controversy over the current administration and the high tensions between right and left. But one of the recent controversies and the one that’s relevant to our discussion today has been regarding Vice President Pence’s statements about his marriage.

Pence indicated that he has these personal rules that he uses to avoid any temptation with other women as a married man, and specifically, he’s indicated that he follow what is kind of colloquially known as the Billy Graham rule. The rule essentially says that if you’re a man, you don’t put yourself in any kind of a situation, you don’t go out and dine with a woman that is not your wife, and you shouldn’t go to any sort of events that serve alcohol unless you’ve got your wife there and close by.

So Pence has said, “I follow this basic rule.” He doesn’t go out and dine with other women that aren’t his wife. And just a little background on the Billy Graham rule, I went through and read up on his autobiography, which is where he talks about this whole rule. And he talks about a meeting with a number of evangelicals in which they were all talking about some of the various problems that they face in their daily lives, particularly when it comes to things about temptation or problems with finances, anything that has to do with their fight to stay pious, I guess.

And so, one of the issues in that, of course, was this concern about temptation with respect to sexuality. So all these people went off to their rooms and wrote down a list of the problems, and then they came together and were talking about it and they listed out a number of commitments they were going to make in order to try to address the temptations that they’re dealing with. Specifically, and this is a quote from Billy Graham’s autobiography, he writes on this issue of sexual immorality, “The danger of sexual immorality: We all know of evangelists who had fallen into immorality while separated from their families by travel. We pledged among ourselves to avoid any situation that would have even the appearance of compromise or suspicion. From that day on, I did not travel, meet, or eat alone with a woman other than my wife. We determined that the Apostle Paul’s mandate to the young Pastor Timothy would be ours as well.”

So Pence has come out and said, “This is the rule that I’m following.” And recently, on Friday, President Trump made a comment, which I assume was specifically geared at this controversy, in which Trump said to the press, “I tell you one thing, he has one hell of a good marriage going.” And then he turned around and slapped Pence on the back, presumably as a counter to this whole point.

Now, the entire controversy, as I understand it, is stemming from two basic positions. One is that the left is saying it’s not fair. You’re basically excluding women from potential business opportunities because everybody on a daily basis goes out and has networking meetings, has lunches, has drinks. Just things to create connections or talk about business or that sort of thing. And if you say I’m inherently just going to never have any of those meetings with one particular gender, you’re being discriminatory. So that’s, as I understand it, the essential left position.

In contrast, the right is saying that this is kind of a reflection of the deterioration of family values in the left that we’ve been talking about. They say that you’ve got a person who’s trying to be pious, he’s trying to do everything he can to avoid putting himself in a temptation situation where he’s going to have even the possibility or even the appearance that he’s going to go out and do something with another woman, and when you’re in that sort of situation, just going out and creating those bonds in and of themselves, when you have a man and a woman, is going to create intimacy. That in turn is going to create temptation, that can lead to infidelity, and obviously, infidelity is going to undermine the institution of marriage.

So those are the basic struggle points that have come out and that’s the controversy that has surrounded VP Pence recently. If you guys are listening and you have any opinions on this, I frankly would love to hear your thoughts. If you want to call in at any point in the show, you can call in at 602-277-KFNX, and you can either share your thoughts or if you have questions, you can discuss that.

In other news, there is a brewing controversy in Tennessee, or apparently this has been going for a bit and I just recently learned about it. The whole thing has started with the Tennessee legislature, and in case everyone thought that gay marriage was no longer in the news, it seems to have popped back up. As you all may recall, there was a recent case in 2015, Obergefell vs. Hodges, in which the US Supreme Court said that gay marriage is allowable under the United States Constitution. That is to say that if two people who are of the same sex want to get married, they have a fundamental constitutional right to do that and none of the states have the ability, legally, to legislate against that. So we can’t have statutes that say there’s one man, one woman, and if you’re of the same sex, you can’t get married. So all of that was voided by the US Supreme Court.

Well, Tennessee has pitched a bill, and there’s kind of two prongs to this whole thing. Number one, Tennessee has pitched a bill that they’re sitting on right now and because they’re waiting on some legislation, or excuse me, some litigation that’s been going on by some of the Tennessee legislature. The basic idea here, and I find this really intriguing because I’m not sure that I find it legally invalid from what I’ve heard, as I understand it, the essential argument is, from Tennessee, if you go back to high school civics for a second, you have the three branches of government. There’s the executive branch, the legislature, and the judiciary. Well, the basic rules are legislation creates the law, the judiciary reviews the law and makes sure that the laws are compliant with the Constitution or that people are following those laws, and then the executive branch enforces the law.

Well, the argument from Tennessee is that the Supreme Court has the ability to look at a law and invalidate that law, but they can’t reimpose legislation. That is to say, they can look at a marriage law and say, “Okay, we’re going to wipe that out because it isn’t compliant with the Constitution.” But in so doing, they don’t have the ability to reimpose a law that says, “Okay, here’s what happens with respect to marriage.” So their argument is, as I understand it, they can come in and say, “Well, we’re not going to legislate anything. We can say, okay, if you want homosexuals to marry, we can just say nobody’s marrying and the Supreme Court doesn’t have the ability to come back in and rewrite a law that says people are getting married. Because historically, under jurisprudence from the US Supreme Court, all of the issues related to domestic relations, things like marriage, are reserved to the state.

So with that, I find it a really interesting challenge and it’s being litigated right now, seems a little bit like a tantrum to me. It sounds kind of like, “Well, if I have to share this toy, then I’m going to break it because nobody’s going to have the toy.” That said, I’m having a hard time … I’m not a constitutional scholar by any stretch, but I do know the basics of the Constitution, and I don’t know what the legal flaws in that argument are. So there again, if you have thoughts on that, I’m super interested to hear anything on that. Do you have any thoughts on that, Shelley?

Shelley Rosas:                       I do.

David Enevoldsen:             We’ll talk about that right after we go to break. We’re going to take a quick break. My name is David Enevoldsen, and I’m an attorney here. When we come back, we’re going to be talking about options in legal services with my cohost, Shelley Rosas. You want to call in and ask any questions, you can do so at 602-277-KNFX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.

Speaker 14:                            Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX.

If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.

David Enevoldsen:             Welcome back to Family Law Report. I’m David Enevoldsen, I’m your host, an attorney with Family Law Guys, an Arizona Law Firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. Have with me today a cohost, Shelley Rosas. She works for my firm. She’s an associate there, she’s also an attorney. And we are going to be talking about the various options for legal services, the pros and cons for each of them.

If you want to reach out and make an appointment with our firm, Family Law Guys, you can do so by calling 480565-8680 or you can check us out on our website at www.familylawguys.com. And if you’re listening and you’d like to call in and ask any questions or share thoughts, you can do so at 602-277-KFNX.

Now, before I jump into anything else, you had a thought about … Shelley, you had a thought about what we were talking about a minute ago right before we went to break.

Shelley Rosas:                       I did. If I’m a Tennessee resident and I want to get married and they’re no longer recognizing marriage at all and have no law that allows for marriage in Tennessee, even though I have a fundamental right to marry under the Constitution, I leave the state, get married somewhere else, I come back, then what?

David Enevoldsen:             Well, I don’t think they can … I’m not one of the ones arguing this, I’m just more reporting on the news there, but I’m not sure that they can stop that because Obergefell, the Supreme Court case that ruled on this whole thing, was dealing specifically with that issue in part. So I’m not sure that they could stop you from going elsewhere, but I think their essential argument, again if I’m understanding it correctly, is that they don’t have to impose legislation that says we’re going to marry anything. Because again, historically, the domestic relations issues have been reserved to the states so long as they’re legislating in a way that doesn’t conflict with the United States Constitution.

Shelley Rosas:                       I don’t understand how that wouldn’t be conflictual. We have a fundamental right to marry.

David Enevoldsen:             Okay. Well, but that goes back to those basic civics questions of the US Supreme Court doesn’t have the ability to impose legislation, I think is the argument.

Shelley Rosas:                       It’s going to be interesting.

David Enevoldsen:             I agree. I’m not sure if it ultimately goes anywhere, but we shall see. If there’s more in the news on it. And it looks like it’s been going for quite a while now. I think they filed the legislation right after Obergefell was issued. I think they generated that argument, and as most people are aware, lawsuits can take a very long time.

Shelley Rosas:                       I wanted to say, I liked your analogy before the show when you said it’s kind of like a bunch of kids playing in a room and it’s like if I don’t get to play with the toys, then we’re just going to break them all.

David Enevoldsen:             Well, and that … Frankly, that’s what I find in family law all the time. I’m sure you do, as well.

Shelley Rosas:                       Absolutely.

David Enevoldsen:             It gets very petty. But at the same time, part of our legal system is not necessarily who’s being petty, but who’s applying legal principles in a correct way. So even if somebody is being petty but they’re correct under what the law says, that doesn’t invalidate their argument just because they’re being petty about it.

Shelley Rosas:                       The technicality can often …

David Enevoldsen:             Yeah, and we see that, which I think kind of funnels into what we’re going to talk about in a few minutes here. Before I jump into that, I want to do a quick … I’m going to introduce a new bit here. We’ll see how this works out. And I’m going to call this “Did You Know?” And in this, I’m going to introduce just a simple factual thing, some sort of trivia, about family law in general.

And what I’m going to talk about today is Sir William Blackstone, who is a legal scholar that lived between 1723 and 1780, somebody I remember reading a ton about in law school, wrote in a book called The Commentaries on the Law of England in 1765: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of a woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover she performs everything; and is therefore called in our law-French” … And for you French speakers out there, I apologize in advance if I’m going to mispronounce these, because I’m sure I will. But it’s said, ” … in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.”

So I found this interesting just because it’s such a reflection of how much family law changes and how much these ideas that we have about marriage and relationships and children alter throughout time. And I’m sure it’s not that surprising that in 1765, there was a guy that’s saying, as a reflection of many of the common ideas that people had at the time, that a woman is just subsumed by the existence of a man the second they get married. But that said, it’s not that all of these concepts are so ancient that they’re that distant. For example, there was a US Supreme Court in 1971 where we were looking at this contrast between gender quality: can we have legislation that prioritizes a woman over a man?

So at any rate, that’s your “Did You Know?” for today. And now, we’re going to jump into the actual topic that we’ve been talking about and we can kind of … Didn’t create a good segue, but a few minutes ago, we were talking about some of the problems that can be inherent in doing things on your own. Specifically, we’re going to be talking about what are the options you have. So you’re facing a case, there’s a lawsuit, a divorce, a custody fight, a child-support case, whatever it is that you’re dealing with, what do you do?

You can go it on your own, obviously. You always have the right in any case to represent yourself. That isn’t always wise. Sometimes you don’t have an option to do anything else, but we want to make sure that you are all aware of what those options are for other things you can do.

Now, the simple most obvious thing is you can run to an attorney, and I want to talk a little bit about how attorneys work. And Shelley, why don’t you touch on that? What’s your experience with … If you want to go hire an attorney, and I say I want to be fully represented, I want somebody to walk into court with me, I want somebody to draft the documents, I want someone to talk to the other side and negotiate on my behalf … What are they looking at in terms of cost?

Shelley Rosas:                       Right. There’s … I think the first thing that you want to do as a client who is seeking an attorney is to get on the internet, maybe talk to some friends, get some names of a few lawyers that people have been happy with, look at Avvo, A-V-V-O, it’s a ratings system, to get reviews. Very important because people like me and you, everyday people, who go through a divorce are going to go on there and put reviews of their attorneys.

You need to find the right fit for you. There’s lots of different styles of practice, especially in family law. There’s a wide range from more formal to less formal, more expensive to less expensive. That doesn’t even necessarily go with skill level or formality.

Some attorneys are going to offer a free initial consult of 30 minutes, some are going to charge for their one hour consult, their one hour hourly fee. For example, we do charge for our initial consult, but we do feel like we provide a lot of valuable information in that one hour, and oftentimes we’ll spend a little more time with you than just one hour and only charge you for that hour.

But I think the most important thing to do is to see a couple of attorneys. I would say no less than three. Engage with them and see if you have a good personality fit. You’re going to gain a lot of knowledge in that one hour, just on how divorce works, the basic tenets of the law, community property, and child custody, and best interests of the child. It will give you a good idea of where you stand heading into the divorce.

I would do all this without making it public knowledge to your family, to your spouse, to anything. Just to do the research and gather the information.

David Enevoldsen:             Well, and I would put the caveat that not every attorney is going to give you a whole lot of background if you go in for just an initial consult. There are some that I’ve talked to where it’s just kind of … You meet the attorney, see if there’s a click, and do you have money or not, okay, bye. I know, because our firm is a little different, we intentionally try to set it up such that we’re making sure that you have feedback. We’re getting all the basic details of what’s going on in your case and then try to create an action plan. And some attorneys are that way, so that’s maybe another thing to look into before you actually start jumping out to an attorney, setting up consults as, are you going to be getting something significant back from it?

Shelley Rosas:                       Right. Then that’s, I think, the key to why we do charge for initial consults because we are providing some valuable information.

David Enevoldsen:             Right, yeah.

Shelley Rosas:                       Legally, for them, for our clients, before they leave the office. By the time you’ve talked to two or three or four attorneys, you’re going to have a pretty good idea of the feel and the fit before you make a choice.

David Enevoldsen:             So okay, that’s a background of what to look for. Now, go back to my question a second ago, which is, what kind of cost range is somebody going to be looking at if they’re going to be hiring an attorney? And they’re doing full representation and they’re going through their whole case.

Shelley Rosas:                       I think initially, you’re probably looking at anywhere from maybe, on the very low end, 2500 to 3000 dollars upfront to 4 to 5, maybe even 10,000 dollars upfront on an advance fee, which would be deposited into a client trust account. That money would still belong to the client.

David Enevoldsen:             So let’s back up a step, just so everybody’s clear. With most family law attorneys, the way that billing takes places is it’s done on an hourly basis. So it’s not, with certain transactions, there will be just flat fees. If you, for example, to a McDonald’s, there’s a flat fee where you say, “I want a burger” and you pay X dollars to get that burger.

With family law attorneys, and with some other attorneys, you can get flat fee transactions. So for example, if you’re talking to probate attorneys, they will very … Not probate, excuse me. Estate planning attorneys. So you went to an estate planning attorney and said, “I want to get a trust done.” Very often, that kind of billing system is done where you just have a flat fee, there’s X dollars, and we’ll prepare your trust or whatever that is.

In family law, it’s a little bit different. Most of these attorneys will work on an hourly basis just because, in family law, it’s incredibly unpredictable, it’s incredibly emotional, and nobody ever knows when it’s going to end or when it’s going to stop. So for example, you can come to my firm and I could say, “I’m going to do your entire case for 15,000 dollars.” And then you pay me 15,000 dollars and I make two phone calls and I’ve settled the entire case. Now, I’ve completely ripped you off as a client because these two phone calls that I did certainly don’t warrant you paying me 15,000 dollars.

In contrast, I could have you come to me and say, “Alright, that’s going to be a hundred dollars,” and then we spend the next three years in nonstop litigation, I spend all day every day shooting off emails and arguing with the other side and showing up in court, writing motions and doing all sorts of stuff and going to trial. Now, I’ve gotten completely ripped off.

So the tension between these two extremes has been resolved, essentially, by the system that everybody uses, which is to charge an hourly rate. And in family law, the hourly rates can range anywhere from 200 to 500 dollars an hour depending on all sorts of things, like Shelley said: levels of experience, amounts of time that they’ve been where they’ve been, that sort of thing. So that’s kind of the normal hourly billing system. Obviously that can wrack up very quickly if you’ve got somebody spending even 250 dollars an hour. That adds up very, very fast. And so you can potentially be spending anywhere from 10 to 50,000 dollars on a normal case if this is going all the way to a trial, sometimes far, far worse.

Shelley Rosas:                       Yeah, I was going to say, if it’s a fully litigated case and all issues go to trial, you’re talking even as high as 70, 80, 90,000 dollars, possibly.

David Enevoldsen:             That’s right. So the obvious concern with an attorney is cost. So when we come back, we’re going to talk about a little bit more of that. We’re going to take a quick break. I’m attorney David Enevoldsen, and when we return, we’re going to talk more about that. You are tuned into Family Law Report on Independent Talk 1100 KFNX.

Speaker 14:                            Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX.

If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.

David Enevoldsen:             Welcome back to Family Law Report. I’m David Enevoldsen, an attorney with the Family Law Guys, an Arizona law firm here with you every Sunday at noon on Independent Talk 1100 KFNX. Have with me today a cohost, Shelley Rosas, who is a family law attorney, works for the same firm I do. We have been talking about the various options for legal services. There are pros and cons, whether you get an attorney, why that’s good, why that’s bad, and other options that you have available. You want to reach out and schedule an appointment with our firm, Family Law Guys, you can do so at 480-565-8680, or you can check us out on our website at www.familylawguys.com.

If you’re listening and you’d like to call in and ask any questions or share thoughts, you can do so at 602-277-KFNX.

Now, when we went to break, we were talking about what’s involved in hiring an attorney, what kind of things to look for, what the costs involved are. Let’s talk for just a second about, not to sound too marketing-ish here, but let’s talk for a second about what are the dangers of not having an attorney, because as we said, you can always go in on your own.

And just as an aside, so that everyone is aware, this is something that I find some clients are confused about: you are not entitled to appointment of an attorney by the court in a family court case. Now, in some criminal cases, that is the case, but there’s nothing anywhere that says you’re entitled to have someone pay for and provide you with an attorney. You can always get an attorney. You have a right to go out and procure an attorney, but the court doesn’t have to appoint one.

So with that, Shelley and I have both seen quite a few scenarios where people go and represent themselves. And Shelley, have you ever seen problems with doing that?

Shelley Rosas:                       I was just telling David yesterday, I said, “Gosh, all I ever see are problems” when someone hires like a document preparer or does a divorce on their own without an attorney at least reviewing documents or giving them advice. But I think the reason I only ever see the problems is because I’m a lawyer, and when they have the problems, they come to me. So it’s obvious that all I see are problems. But I’ve seen some pretty catastrophic financial problems and/or custody problems where people have handled their own divorce and they didn’t understand what their rights were or what their responsibilities were along the way. And some very unjust inequitable decisions were made or agreements were made, and people were very sorry later. And it costs much more money and it’s much more difficult to change things after the baselines are laid with the initial decree, parenting plan, property settlement, and documentation.

David Enevoldsen:             Right, well, let’s table the thing about document preparers just for a second until we’ve actually talked about document preparers. But just yesterday, Shelley and I were discussing a case that we’re working on, we can’t tell you any of the details because of client confidences and privilege and whatnot, but the generic idea here is that there was someone self-representing that made an error because they didn’t have an attorney and did something completely wrong, and it’s the kind of error that can be absolutely catastrophic. There’s case law in this particular issue that we’re looking at where somebody was set back, I think something like 70,000 dollars because of this mistake that they made. And it’s such a simple mistake that most attorneys would recognize right away, but it just nuked their case.

Shelley Rosas:                       In fact, as soon as we got the case, we did recognize the problem right away.

David Enevoldsen:             Right.

Shelley Rosas:                       And unfortunately, it’s been through several steps between then and now, and there’s actually decisions that have been made and people have somewhat relied on. And now, come to find out, the court never had jurisdiction to start with, didn’t have the ability to make the decisions, and now we’re stuck with a situation where we’ve got to rectify the problem because all the snowball does is get larger as it continues to roll downhill for both parties in this case.

David Enevoldsen:             Right, and if nobody catches it, there’s some potential problems that can be years of litigation that are for nothing. Get wiped out or even worse, put you back in a place where you would have been years ago that wipes out stuff that you should have had or you should have been paying or anything like that.

Shelley Rosas:                       And all the attorneys’ fees spent on something that doesn’t even technically exist.

David Enevoldsen:             Right. So there are potential catastrophic problems. We’ve seen other things, like people file the wrong forms. And frankly, there are some errors that don’t matter that much in the family law universe, but there are some errors that frequently seem very obvious to somebody that’s familiar with family law as an attorney that they would recognize right away. And if you make those mistakes, it can be catastrophic to the case.

So without going into too much detail about that, because again, we can’t really provide examples because of privilege, let’s talk about some of the other options here. So let’s say that somebody wants to hire an attorney. They say, “I recognize the value in having an attorney, I fully recognize that I’m not trained in the law and that I need some help going into this”, but they just cannot generate the money because they talked to several attorneys, just as Shelley had recommended a few minutes ago, but they’ve gone to Mom, they’ve gone to Dad, they’ve gone to friends, they’ve maxed out their credit cards, and there’s just nothing there. And they cannot afford whatever the initial advance is for each of the attorneys that they’re looking at or the potential for litigation. Other options that they have, that’s what we’re going to talk about next.

One of the major options we’ve got are what are called legal document preparers, or at least this is what Arizona calls them. And legal document preparers, the basic idea, is that you have someone who is not an attorney who has some, sometimes, some basic level of training. In Arizona, there’s a basic training requirement for legal document preparers. And they have the ability to take information from the client and put them into a legal form. And if they want to, they can submit them also to the court.

So for example, if you’re going through a divorce, they can put together your divorce petition. You go to them and say, “Here’s what I want to put into my divorce petition” and then they can take it, run it down to the court, and then you’re off and running. One of the advantages of having that document preparer is they can really help you sort through some of these forms, they already know what the forms look like or they have the templates for all this stuff. They can generally give you basic information about legal processes.

One of the inherent drawbacks of a legal document preparer is that they are legally specifically prohibited from giving any legal advice or representing someone in court. So the problem that we run into is people will often go to the legal document preparer, the legal document preparer has no idea or sometimes has no idea, but even if they do have some idea, they can’t tell you what to do. They can’t say, “Here’s what tactically should happen.”

Now, I’ve got some experience at this because before I went to law school, I actually worked as a certified legal document preparer. And by the way, if you’re talking to someone in Arizona that is preparing documents on your behalf, make sure that they are indeed certified. This is done through the Arizona Supreme Court. The Arizona Supreme Court has a public list that you can go on and check, and if this person isn’t a certified legal document preparer and they are preparing documents on your behalf, they are engaged in the unauthorized practice of law, which is I think obviously illegal. So if you’re going to use one of these persons, at least make sure that they are indeed certified with the Arizona Supreme Court.

Now, back to my experience as a document preparer, I had situations in which someone would approach me and say, “Hey, I want you to prepare X, Y, Z document.” And I would say okay, let’s do that. And I would start putting it together. And in the back of my head, I thought on a couple of cases I remember that I worked on, “This is a terrible idea. You should not be doing this.” But because I couldn’t give legal advice, I couldn’t say anything, and so this person proceeded on to just do something that was an error, and I just had to prepare it.

Now, another major problem with the document preparers that I have seen in practice is that we have this theoretical idea, and I know, Shelley, you and I were talking about this yesterday, we have this theoretical idea that document preparers are not supposed to give legal advice, and some of those will strictly follow the rule.

The problem is I think that you’re in these positions where there is a huge temptation and a huge pressure to do otherwise. Again, talking as a former document preparer, I think it was probably every other client, if not more than that. I would talk to them and say, “Here’s your thing, I can’t give you legal advice. What would you like to do?” And they would say, “Okay, well, I know you can’t give me legal advice, but really, what should I do?” And I would say, “I can’t give you legal advice.” And they’d say, “Okay, I get that, I get that, but seriously, what should I do?” And I would say, “I can’t give you legal advice.” And they say, “Alright, I understand, but if you were in my situation, what would you do?”

And so, there just became this huge pressure to give legal advice and I know for a fact, we have seen cases that have come in through our door where someone has talked to a legal document preparer and gotten legal advice. And the problem with that, aside from it being generally illegal, is that the document preparers, while they have some minimal level of training and some minimal level of experience in Arizona, they very frequently don’t know what they’re talking about.

And just in the past month, I personally had a case come in with a document preparer having done something before I saw it, and they made a huge, huge error. They told the client to do something that was just flat, obviously wrong. To me as an attorney looking at it, I saw it and went, “Whoah! How did this happen?” And then the client said, “Oh, the document preparer told me to do this.” And I went, “Oh my gosh, no! That’s a huge error.” So then, we had to go back and unravel it and it just was a disaster.

And Shelley, have you seen situations like that as well with document preparers?

Shelley Rosas:                       Absolutely. I’ve seen people come in. That initial petition that you file in your divorce is so important and I’ve seen people come in and right out of the gate, their initial petition is already costing them way more than it would have cost them to hire an attorney to do everything for them in the first place.

So I always suggest to people that if you’re going to hire a document preparer, if you’re going to use the self-help center and prepare your own documents, more power to you. There’s great instructions online through the court. But let an attorney review your document before you file it with the court. You can pay an attorney by the hour to give you feedback. Just flat fee services, come in for an hour, sit down with David, sit down with me, sit down with any family law attorney. Let them look at what you’re planning to file before you file it so you make sure you’re not making one of these errors that you’re going to have to pay more than you would have paid in the first place to unravel.

David Enevoldsen:             Alright, we’re going to take another quick break. I am attorney David Enevoldsen. When we come back, we’re going to talk a little bit more about this and some other possible options for legal representation. I’ve got my cohost here, Shelley Rosas, she’ll be with us. And if you want to ask any questions, you can do so by calling in at 602-277-KFNX.

You are tuned into Family Law Report on Independent Talk 1100 KFNX.

Speaker 14:                            Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX.

If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.

David Enevoldsen:             Welcome back to Family Law Report. I’m David Enevoldsen, an attorney with the Family Law Guys, an Arizona law firm here with you every Sunday at noon on Independent Talk 1100 KFNX. Have with me today a cohost, Shelley Rosas, who is a family law attorney, works for the same firm I do. We have been talking about the various options for legal services. There are pros, their cons. If you want to reach out and schedule an appointment with our firm, Family Law Guys, you can do so at 480-565-8680, or you can check us out on our website at www.familylawguys.com.

If you’re listening and you’d like to call in and ask any questions or share thoughts, you can do so at 602-277-KFNX.

Now, when we went to break, we were talking about legal document preparers and their use. And we talked a little about their problems, and you started touching on the issue of how you can effectively use them if you’re going to use a legal document preparer. Because one of the inherent problems you have with a document preparer is that they’re not able to give you advice or if they do end up giving you advice improperly, they very often give you bad advice because they just haven’t been trained in the law. Or they don’t have the experience or whatever it is. We have both seen situations where that has happened.

So one of the possible remedies you have is what the legal community calls ‘unbundling services’, where you can take something from an attorney, which is basically carving up the services that they would otherwise provide. So traditionally, you go to an attorney and you pay them money and they go into court and represent you and argue with the other side and draft all the documents and kind of do everything in the case for you. With unbundled services, the idea is you’re just carving up some of that representation and paying them for just pieces of it. So rather than paying the attorney many thousands of dollars to fight through the whole case with you, instead you just meet with them and get some advice or have them review documents that you’re submitting or are about to sign or something of that nature.

Sometimes you can even have the attorney do what’s called limited scope representation where they draft the documents for you. Sometimes that’s what you’re doing, where they’re not fully representing you. So one of the possible ways that you can, I think, effectively use a legal document preparer is to talk to an attorney, figure out what you’re doing, make sure that you’ve got some sort of tactical plan because the attorney can give you legal advice; pay the attorney for the time that’s involved in just kind of meeting and figuring out what to do and what’s going on to the document preparer; have the document preparer perform the function of drafting up the forms as you now understand you need by having talked to the attorney, and then maybe even going back to the attorney and saying, “Hey, I’m just going to pay you some amount just to make sure that this is right.” And then you can, effectively that way, use the legal document preparer and cut down your cost dramatically over having to use just an attorney.

Now one of the problems of that approach is that you’re kind of parsing it out into different places. Again, there are some attorneys that will draft the documents, but I would at that point just do a price comparison and make sure you’ve got some level of experience. Again, if you’re in a situation where you just cannot afford the attorney, some level of legal representation is going to be better than no level of legal representation because, as we talked about a few minutes ago, going in on your own can be extremely dangerous.

Now, another possible option out there is just going out there and getting forms. And I know there are people out there … I remember my mom told me once when I was little and my parents got a divorce, I believe she said she went and got some forms somewhere at some place. There are a lot of places you can get that. As a preliminary matter, there’s a self-service center in the Supreme Court, at least in Maricopa and some of the other counties in Arizona also have self-service centers on their websites. And in those self-service centers, you can go in and pull up pre-filled out forms with blanks. And you just kinda go in and fill in the blanks with your name, your caption information … Did you want to say something?

Shelley Rosas:                       I do. I want to jump in here and say first of all, I think David meant to say Superior Court, not Supreme Court.

David Enevoldsen:             Oh.

Shelley Rosas:                       Maricopa County Superior Court self-help center does have a document bank. But most importantly, alongside those documents are sets of instructions.

David Enevoldsen:             Yes.

Shelley Rosas:                       And they’re rather lengthy. And it’s exceptionally important that you read the instructions and follow the instructions as you’re filling in the blanks. You will get very good guidance as to what goes in the blanks instead of taking a stab at it on your own without the explanation or the instructions from the court. So it’s very important, and I find those forms to actually be very, very good.

David Enevoldsen:             Yeah.

Shelley Rosas:                       And very up to date. And I think the general public is very capable of doing a lot of their own legal work using and following those instructions. And then, if you have questions, then going for the consult, talk to the attorney, take the forms with you, take the instructions with you. But make sure that you print those instruction forms that go along before you start filling in the blanks.

David Enevoldsen:             Yeah. Or at least look at them. I mean, you don’t necessarily have to actually print the instructions. You can have them up on your computer. But I said Supreme Court, yes, I meant Superior Court. So each county has its own superior court in Arizona and you can check their websites first. Maricopa’s got a pretty comprehensive list of all of those documents.

Now, the problem with this approach is a couple of things. Number one is, as Shelley said, those instruction forms can be really overwhelming to some people. And I’ve had scenarios where I met with someone and sent them to go look at the forms and their eyes rolled over and they said, “I don’t know how to do this, please help me.” So that’s one problem.

Another problem is that they don’t cover every conceivable scenario. There are quite a range of scenarios that they cover and they deal with some of the basic stuff. But when you get into far more contentious situations, situations that get more abstract, there are not always forms that match up with what you need.

Another major problem with just doing the forms and not doing anything else is that we’ve seen a lot of scenarios where people pick the wrong forms and they start filling it out and file something incorrectly and they mess up their case because they don’t have the right stuff that’s been filed.

Shelley Rosas:                       We just saw that. We had … We just saw this. We had someone file a petition … This was unrepresented. File a petition to establish child support instead of a petition to modify upon losing a job, and months go by and it’s the wrong action and you want your modification to start upon, be considered for modification to adjust your amount you have to pay downward to begin when you file. Well, if you file the wrong action, it’s not going to begin ever because you’re going to have to file a new action to start with. So you’re losing every month. Your child support obligation is 800 dollars, you need it to go down to 400 dollars, that’s 400 dollars a month that’s wracking up because you filed the wrong action, didn’t understand it in the first place.

David Enevoldsen:             Right. Now, with these forms that you’re looking at, you can do the exact same thing you would do with a document preparer that I was talking about a few minutes ago in terms of you can go out and you can recruit an attorney to just give you advice and kind of look over the forms before you submit them, make sure you’re doing the right stuff, make sure you’ve selected the right forms, make sure you’re saying things that tactically make sense.

Also, there’s more stuff out there than just what’s out there on the Superior Court’s websites. You can … There’s a lot of services that specialize in just producing forms. I would encourage you before you go out and spend money on something, there’s programs like Nolo, which will have books that just fill in information about here’s the basic process, here’s some forms to fill out.

Number one, take a look at the stuff on the Superior Court’s websites first because those don’t cost any money as long. As you’ve got internet access and the ability to print out forms, you don’t have to pay anything for that. But if you want more information, then there’s other stuff out there. Nolo’s a pretty good one. They usually will create some pretty expansive explanations about what to do.

If you’re going to a commercial service, one of my one cautionary notes is just make absolutely certain that you’ve got the appropriate forms because there’s a lot of those services that will just put out forms that are just very generic and may or may not apply in our state. It might not fit there because sometimes they’ll just put things that sort of, they think apply to every place in the country and they don’t because every state is extremely different from another.

We’re starting to get a little short on time, so I just want to hit one other possible thing you can do in terms of legal representation. There are a number of services that are effectively legal insurance plans out there. And there’s a few of them like ARAG and Legal Shield, which was formerly Prepaid Legal. I think Hyatt is another one. And the basic idea there is you pay a monthly fee of some set amount, and it’s a much lower fee than you’d be paying otherwise, and then you’re paying into, again, effectively a legal insurance plan. And then these plans, when you go to them, they will have certain predefined things that are covered by attorneys.

So for example, you might have unlimited questions that you can call up and just say, “Hey, I’ve got a legal question, I need to talk to an attorney.” And the attorney calls back and will let you know what you should be doing. They will sometimes have plans where they’ll have representation for predefined purposes. Major problem that I’ve seen with these, and I think these can be very, very useful if you know exactly what you’re getting into. One of the major problems I have seen is that people don’t always fully understand the scope of it. And so, they’ll think they have a legal insurance plan with unlimited legal services, and then they try to use it and they realize something they wanted isn’t quite covered or didn’t cover it as effectively as they want to.

I personally used these services before, before I got admitted as an attorney. I remember there was a plan I was using where I was able to just call up and ask all sorts of questions. And I found that extraordinarily useful at the time. So my only cautionary note if you’re going to go that road is just make sure you understand the scope of what you’re getting into so that you’re not surprised later when you’ve been paying money for months and months and months, that you’re not getting exactly what you want.

So that is about all the time we have for today’s show! You have been listening to Family Law Report. I’m David Enevoldsen, an attorney with the Family Law Guys, Arizona law firm. And I’ve had with me Shelley Rosas, an attorney from the same firm. Please join us again next Sunday at noon for the latest on Family Law here on Independent Talk 1100 KFNX. Thank you for listening.

Announcer:                            Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX.

If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.