About five years ago–after being burned for the umpteenth time by entering a temporary consent order binding my client to a temporary support without first obtaining a financial declaration from the opposing party, only to subsequently learn that the other party’s income and expenses would not have justified such generous support–I vowed never again to negotiate temporary support issues until the other party provides me an executed financial declaration. My thinking is that, if you want money from my client, you need to provide documentation, under oath, before my client offers it. After all, the family court will require such disclosure before it orders financial support. If it’s my client wanting support, I will tell that client to provide a financial declaration before asking me to negotiate. Hire me to handle a domestic matter that involves financial issues and the first task I will assign you is to draft a financial declaration.
Since implementing that policy, I’ve encountered loads of complaining–some from my clients and some from opposing counsels. “I know the other side’s financial situation well enough,” my clients will often inform me. “Why can’t we negotiate before we get/provide financial disclosure?,” they (both clients and opposing counsel) ask–the asking often shading into demanding. To the opposing counsels I say, “no negotiation without financial declaration–and it needs to be executed, not an unsigned, unnotarized draft.” I say the same to my clients, and inform them that they can fire me if they don’t like my policy. I’ve not often been fired for taking this position and, in the past half decade, I’ve not had a single client enter a temporary consent order on support issues that the client later regretted entering–which isn’t to suggest that they didn’t try to lower this obligation during the litigation process.
Yet I continue to encounter cases, almost monthly, in which one party committed to a temporary financial obligation without first receiving an executed financial declaration from the opposing party. Sometimes months have elapsed and the supporting party has yet to receive financial disclosure from the supported party. A sizable portion of my business is taking over representation in the middle of litigation from folks who weren’t happy with their previous attorney. While I hesitate criticizing prior counsel–even when there’s such obvious errors as failing to issue discovery in a contested case or failing to file a responsive pleading–I will criticize prior counsel who had a client enter a financial obligation without first obtaining financial disclosure.
The most common and obvious attorney malpractice in the South Carolina family court is having clients enter financial obligations without first receiving financial disclosure. Stop doing it and stop asking your colleagues to do it.
