Choosing a divorce attorney is always a difficult process, whether you are filing the divorce yourself or trying to catch up with your spouse that has already decided the marriage will no longer work. When you are dealing with a high conflict spouse, and children are involved, choosing the right attorney is paramount. In a high conflict case there is one other issue you have to deal with though, what type of attorney has your spouse hired?

There are generally two types of divorce attorneys. The first is the kind that just wants to head to court, they believe everything you say, and will fight til the death, or until you run out of money, whether it’s the right thing for you or not. They tell you what you want to hear, that you will win no matter what. They won’t give you any guidance on how to negotiate, how your own behavior will affect the proceedings, or give you an understanding of the legal process, they want you to leave it all to them.

The second type of attorney will help you understand the legal process, ask questions about your own behavior to help you understand where there may be issues, and will put the onus on you to decide how to proceed with your case after presenting the facts to you and the odds of you winning. They will often present the costs so you can determine if the fight is worth it, and will help you settle things out of court on your own as much as possible.

As you can imagine, a high conflict person loves the first type of attorney, because they will never tell them they are wrong. These attorneys are sometimes known as negative advocates, or enablers. They see their role as defending the victim, without questioning the validity of what they’ve been told. While this may seem like a good thing to want in an attorney, someone that will fight for you whether you have told them the truth or not, this can cause problems. First it will be expensive, because they will fight as long as possible, no matter how unrealistic the odds of winning seem, even when their client’s stories have been proven false. Second, they often lose because the other side takes a realistic approach with what they can prove, and if a client isn’t telling their attorney the truth, the attorney can’t defend them properly. In our own case we have won numerous hearings simply because we have documents that the other side has never shown their attorney because if they did, they would look like idiots and the case would never go to court. The other attorney had no way of knowing what was going to happen in court, and as a result, they lost.

Choosing an attorney that will question your own actions, and help you make choices based on realistic outcomes, is in your best interest. Finding that attorney is the hard part. Here are several questions to help you get started. Remember these are only concerning high conflict custody issues, don’t forget to ask other questions if your attorney is handling property settlement or other divorce issues!

  • How do you approach negotiating a custody agreement?
  • What is the standard custody agreement in this area?
  • Do you have a standard custody agreement written or do you personalize each agreement towards the problems that occur in that relationship?
  • Are you open to suggestions on the agreement that I believe could help me avoid custody problems in the future?
  • Do you recommend mediation?
  • At what point do you recommend going to court?
  • What percentage of your cases end up in court?
  • Have you ever dealt with false allegations? How? What happened?
  • What are your thoughts on parental alienation?
  • Have you dealt with PAS before? How? What happened?
  • How comfortable are you with educating me on how custody matters work in family court?
  • Have you ever dealt with personality disorders? How? What was the outcome?

If you are looking for an attorney, or trying to decide if you need a new one, we highly recommend the book Splitting by Bill Eddy. We also highly recommend you buy a copy for your attorney so they can understand what you are dealing with, and what they will deal with while negotiating or in the courtroom. Most attorneys are simply not aware of why some people are more high conflict than others, and few understand personality disorders, so an overview from another attorney goes a long way in educating them in order to help you get the best custody agreement possible.