1.3 Evaluating the Client's Position

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

1.3 EVALUATING THE CLIENT'S POSITION

1.301 Information to Be Obtained from the Client.

A. Personal Data.

1. The Initial Interview.

¹³⁴ The initial client interview is a critical step not only in deciding whether to handle the case but also in determining the course of action to be taken. At the initial interview the attorney may be able to evaluate the strengths and weaknesses of a client, including the client's demeanor, ability to withstand cross-examination, and communication skills. Having a paralegal conduct the initial interview can lessen both the attorney's effectiveness in evaluating a client's position and his or her ability to gain the necessary client confidence.

2. Background.

Because domestic conflicts tend to degenerate into bitter and emotional confrontations, it is important that counsel learn as much as possible about the client, the other spouse, and opposing counsel. If the attorney is the client's second or third counsel, more investigation is necessary.

3. Screening for Conflicts.

A system should be in place at every law firm designed to ensure that no conflict exists in representing the potential client before an in-depth consultation takes place wherein confidential information will most likely be disclosed.

4. The Client's Personality.

Personality traits can have an impact on a separation agreement and on a court hearing. The client's ability to handle stress and remain cool under fire may assist counsel in determining what types of moves and countermoves should be made in the negotiation process. Counsel should evaluate the client's spirit of cooperation and willingness to assist in securing and compiling data.

5. The Family's Lifestyle.

The information gathered during and after the initial meeting should augment counsel's knowledge of the family's lifestyle, values, and problems.

6. The Client's Goals.

Counsel should discuss both short-term and long-term needs and goals. Because of the trauma of the separation, the initial interview may produce a list of hazy client goals. Once the realities of the separation have set in, the attorney should encourage the client to focus on future goals.

7. The Client Fact Sheet.

¹³⁵ The use of a form on which the client lists necessary data, such as date and place of marriage, names and birth dates of children, and places of employment, allows a quick review of key data. If time and confidentiality concerns permit, the attorney may wish to send this sheet to the client to complete before the initial interview.

B. Financial Data. ¹³⁶

1. In General.

The information required and processes used in gathering information are generally the same regardless of whether the data is used for negotiation purposes or for trial.

2. Outline and Checklist.

Most clients are unaware of the broad scope of a property settlement or the issues to be presented to the court. ¹³⁷ To inform them of these matters, the attorney should give the client an outline in the early stages of the representation as a resource to prepare for future meetings. The use of a master information list by the client keeps necessary information on one form. Assisting counsel to prepare this form will help the client recognize the depth to which the attorney must go in compiling information. ¹³⁸ The client should begin gathering tax returns and asset documentation from the beginning of the representation.

3. Client Involvement.

Client familiarity with the financial data forms used by a particular court is helpful from the outset. ¹³⁹ Getting the client involved as an information resource also helps limit attorney time and leads to a greater client appreciation of the complexities of support and property division.

4. Expenses.

At the initial interview, the client should be given forms for calculating monthly expenses. ¹⁴⁰ Clients often find it difficult to construct an accurate picture of their monthly expenses and to allocate expenses between themselves and the children. A detailed expense form may be used to jog a client's memory as to particular expenses of a child and to show the extent of the parent's financial involvement with the child. ¹⁴¹

The attorney must help in the preparation and review of the expense statement. The final version to be used at trial should be prepared with as much professional care and attention as any other trial exhibit. Until such time as the expense statement is final, all versions should be marked as "DRAFT."

The client should furnish check stubs or charge account bills and receipts covering a period of six to twelve months so that a more accurate picture of the present financial situation can be obtained. Supporting documentation for expenses shown on the statement can bolster credibility in both the negotiation and trial stages. It is important to check figures that a client puts on his or her expense statement by referencing the actual bills and bank statements.

If the client is able to prepare estimated expense figures for the other spouse as well, he or she should do so.

In light of the presumption behind the child support guidelines in sections 20-108.1 and 20-108.2 of the Virginia Code, the expense exhibit may have limited utility in a particular case. But actual expenses may become more critical in support of an argument for a variance from the guidelines. The support exhibit should set forth all of the marital debts and permissible offsets under the statute. This information is necessary when seeking a spousal support award or an award of attorney fees and costs. ¹⁴²

Many Virginia courts require the submission of a child support guideline worksheet at the time of the hearing. This worksheet and an income and expense exhibit will save the court time in making the necessary computations under the guidelines. It is prudent to submit more than one worksheet where there are potential differences in the gross income figures to be used, and a worksheet should be furnished to the court whenever income is imputed to one party. ¹⁴³

In cases where each parent has more extensive parenting time, a shared custody support worksheet should be prepared. ¹⁴⁴ If the noncustodial parent has the child for more than 90 days of the year, the shared custody support provisions in section 20-108.2(G)(3) apply. ¹⁴⁵ In 2018, three new types of custody computations were added to the statutory guidelines. ¹⁴⁶ These new subsections provide guidance in mixed custody situations where there are different custody arrangements for some or all of the children and where more traditional methods of computation are combined to arrive at a reasonable solution. ¹⁴⁷

5. Additional Factors.

Information bearing on these additional factors should also be gathered:

a. Imputation of income to an unemployed or underemployed parent;

b. Rationale for variance from the guidelines;

c. Private school

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