Posted On: January 30, 2009

Joint Debts and Divorce

In a divorce, it is common for the parties to have join debt. While there is a lot of focus on dividing up the assets of a marriage, often, not enough attention gets paid to dividing up the debt of a marriage.

A final divorce decree (or settlement incorporated into a final divorce decree) is a court order. Court orders regarding responsibility for payment of debts and liabilities are effective between you and your former spouse, but do not bind a joint creditor that you and your former spouse share. If you still maintain joint credit cards with your former spouse, the only sure way to protect yourself against liability for further charges is to cancel the credit card.

Your Decree should indicate which party is to assume responsibility for payment of certain debts or obligations. For example, if your former spouse is awarded the marital residence and is ordered to assume full responsibility for the payment of the mortgage (but fails to make the payment), the creditor will most likely look to you for the payment of the mortgage until such time as your former spouse removes your name from the mortgage.

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Posted On: January 28, 2009

Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Required Discovery (Interrogatories and Request to Produce), Domestic Relations Financial Affidavit (DRFA), and Child Support Worksheets

The next blog entry on our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the unique discovery procedures in place for Fulton county divorce and family law cases. Unlike all other counties in Georgia and all other types of cases in Georgia (whether in Atlanta or anywhere else in the state), Fulton County has a mandatory set of discovery that both parties must respond to at the 30 Day Status Conference.

At the point of filing a divorce or other family law matter in Fulton County, both parties receive what is generally known as the Standard Initiation Packet. While there is a lot of useful information in this packet, there are four particular documents that we wanted to draw your attention to: Answers to Interrogatories, Required Documents to be Produced, a Domestic Relations Financial Affidavit and information about the required Child Support Worksheets.

The Answers to Interrogatories and Required Documents to be Produced documents in particular are what we are referring to as the mandatory discovery disclosures in Fulton County. These documents require that each party complete the standard set of questions that are being asked (the Interrogatories) and “produce” various documents (such as tax returns, paystubs, evidence of other income, retirement, costs for the minor children, etc.) at the 30 Day Status Conference. Even if the parties live in the same household, this requirement must be met. The purpose of these requirements is to allow both sides the basic documentary information to proceed with issues such as child support, alimony and equitable division.

Posted On: January 27, 2009

Divorce Lawyer Atlanta - our new divorce website

Meriwether & Tharp, LLP is proud to announce the launch of its new divorce website - Divorce Lawyer Atlanta. We are currently in the launch phase of its release and expect lots of minor changes to be made over the next few weeks. If you have a moment, we would appreciate any feedback you have for improving our new divorce website. We are especially interested in topics you would like to see covered on our main divorce site.

We also wanted to take a moment to encourage your comments about future topics we should cover in this blog. If you have a topic or question you would like to see covered in a future blog entry, please leave a comment on this topic, let us know using the contact form, or email us. Thanks in advance for your input. We want this blog to become the definitive source for individuals to turn to for information about divorce and family law matters in Atlanta, Georgia.

Posted On: January 26, 2009

Penalties for not paying child support in Georgia: License revocation

According to O.C.G.A. § 19-6-28.1(b), the licensing agencies in Georgia can revoke or suspend someone’s license if he or she is in arrears behind in paying child support for a period of more than sixty days. Not only can the Georgia Department of Driver Services suspend someone’s drivers license, but the person’s professional license, such as a license to practice medicine. A business license as well as hunting and fishing licenses can also be suspended. Also, if the non-paying parent applies for the license, the application can be denied based solely on the fact that he or she is in arrears with child support. Georgia is not the first state to implement such a drastic law to punish parents who are in arrears. For years, the states of Ohio, Tennessee, and Arizona, have suspended drivers licenses because someone owes back owed child support to their ex-spouse.

When this law comes into effect in July, there are going to be those who support the law and who oppose it. Some people may feel that it is unfair because if they don’t have a driver’s license, then they cannot get to work to earn the money to pay child support. Prior to revoking or suspending someone’s license, the court will notify the person who is in arrears. If he or she is able and willing to cooperate with the court to make their child support obligation current and to provide evidence to the court, then the court will consider this and may not revoke or suspend his or her license according to O.C.G.A. § 19-6-28.1(b). This law is meant only to punish those who do not plan on becoming current with their child support obligations. Once the court has contacted the person and has determined that he or she is not going to pay the back owed child support, then the court will enter into an order and contact the licensing agency for the person’s failure to pay child support. If the licensing agency revokes or suspends his or her license, then the licensing agency will contact the court according to O.C.G.A. §19-6-28.1(b).

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Posted On: January 25, 2009

How do I file for a divorce in Georgia when I do not know where my spouse lives?

Over the years as divorce attorneys in Atlanta, we have received several calls from both women and men in which they want to file for divorce, but they are not sure where their spouse resides. In many cases, he or she has been separated from their spouses for years. Since they did not keep in touch with their spouse, they do not know where their spouse currently resides. There are several reasons why one of the spouses contacts our office for a divorce after so many years. One of the major reasons is miscommunication. When the spouses separated, one of the spouses believed that the other spouse filed for divorce even though they never received any paperwork from the court. Also, the parties may lead such busy lives that either one of the parties may have simply forgotten to file for divorce. There is usually some upcoming event, which causes one of the spouses to have to finally file for divorce. In some cases, one of the spouses is getting remarried and they need to be legally divorced prior to the date of their wedding.

Even though you may not be aware of your spouse’s whereabouts, a judge will still grant a divorce in Georgia, but in most cases, there is additional time and money involved. Before an attorney drafts any of the pleadings, you must provide as much personal information about your spouse, such as his or her last known address, his or her social security number, his or her full name, or his or her date of birth. The more information that you provide to your attorney, the more likely that your spouse can be located. Once you provide your spouse’s personal information to your attorney, they can perform a skip trace. In some cases, attorneys have access to public records databases where they can search for your spouse’s current address using his or her personal information. If your attorney does not have access to these databases, they can contact a third-party who can perform a skip trace for you. The third party company, however, does charge a fee to perform a skip trace on an individual. Also, the attorney or their staff can perform a postal trace in conjunction with the skip trace. When you perform a postal trace, a request is sent to the United States Postmaster in the city where your spouse last resided and the Postmaster will provide the attorney with the spouse’s last known address if it is available. The disadvantage of performing a postal trace is that if your spouse did not provide a forwarding address when he or she moved, then the Postmaster cannot provide the attorney with their new address.

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Posted On: January 24, 2009

Lump Sum Alimony vs. Periodic Alimony

According to Georgia law, alimony is defined as “an allowance out of one party’s estate made for the support of the other party when living separately”. O.C.G.A. § 19-6-1(a). In Georgia, alimony can be awarded to a party in a divorce in two different ways – lump sum alimony and periodic alimony.

Lump sum alimony, like it sounds, is when a party receives one large sum of money from the parties’ estate as alimony. On the other hand, periodic alimony is where a party receives periodic payments of alimony (usually on a monthly basis) over the course of a certain period of time. In addition to the obvious payout differences, there are several additional differences between the two types of alimony payments. First, lump sum alimony is not subject to future modifications by the court. O.C.G.A. § 19-6-2. Periodic alimony is subject to future modifications for so long as a party is continuing to receive alimony payments. Second, the two types of alimony can have different tax treatment as described in more detail in our prior blog discussion about the tax effects of alimony.

In addition, ignoring any tax implications, even the exact same amount of money awarded in lump sum alimony and periodic alimony are not necessarily worth the same amount of money. First, periodic alimony does not take into account a present day discount for money. In other words, a dollar today is worth more than a dollar a year from now. Second, once received, there are no future collection issues with lump sum alimony while periodic alimony is subject to collection concerns for years until it is paid in full. Third, periodic alimony is subject termination for various reasons (such as remarriage) as discussed in greater detail in our blog regarding remarriage and modification of alimony.

Posted On: January 23, 2009

Documents to keep after your divorce is final

Once your divorce is final, we recommend that you keep certain documents, especially if you are receiving child support and alimony from your ex-spouse. Many people may feel like they need to destroy certain documents, such as the marriage license, because he or she may not want to keep things that remind him or her of their ex-spouse. It is very important to keep certain documents and records because you may unfortunately need them in the future, especially if your ex-spouse fails to pay his support obligations to both you and your children. Below is a brief list of the documents and records that we highly recommend that you keep after your divorce. We recommend keeping these documents in a firesafe security or file box. We do not, however, recommend that you keep any important documents in a safety deposit box. If something happens to you, your family may not be able to retrieve these documents from your safety deposit box.

1. Copies of checks and/or money orders:

If your ex-spouse is required to pay child support or alimony to you, it is very important that you make copies of these checks and/or money orders for your records. If your ex-spouse insists on paying you cash, however, we highly recommend that you give your spouse a receipt, which both you and your spouse sign. Receipt books only cost a couple of dollars and they could help you immensely in the future if you need to file an action with the court. If your ex-spouse makes the payments in cash, it is very difficult to prove to the court that he or she made these payments to you since there is usually no tangible evidence showing these payments were made.

Also, in addition to making copies of all checks and/or money orders, we highly recommend that you keep a log of all of the payments that you received. You can either keep the log on your computer or a notepad. Every month, you should make an entry in the log listing the amount of the payment, the check number, and the date received. If your spouse fails to make a payment, you should still make an entry, but you should put “no payment received”. It is so much easier to calculate how much money your spouse owes you when you have a tangible record of it. The downside to keeping detailed records on the computer is that you would lose these records if your hard drive crashes or your computer is lost or stolen – if you do please be sure to backup the file regularly and keep a backup copy offsite.

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Posted On: January 22, 2009

Atlanta's Best Divorce Lawyer?

A friend of mine recently asked me - who is the best divorce lawyer in Atlanta? While of course my ego wanted to say me, I thought better of it than giving that self-serving answer. As I pondered the question more and thought through the numerous divorce attorneys that I have dealt with struggling to find the best answer to that question, only more questions came to my mind.

The first question was - how do you measure what makes a great divorce attorney? Of course that question only lead to the next logical question of - what things do divorce attorneys actually do? Fortunately, I had a lot of knowledge in that area. Divorce attorneys meet with clients, opposing attorneys, judges, and juries. They write letters, motions, and briefs. They argue positions and advocate for clients. They research statutes and case law as well as facts underlying cases. They are required to review complex financial and businesses documents. They must have excellent negotiation skills. And they must have excellent advocacy skills for when negotiations fail. And the list (that probably any first year law student could name) goes on and on … and hardly served to answer the question.

So I tried a different approach, what traits are most important in handling a divorce case. So I thought through the numerous cases I have handled over the years looking for what common traits existed in each case. Certainly in some cases it helped my client being more aggressive. Yet in others, it helped be less aggressive. In some cases, it was better to stay diligent (if not tenacious) in researching the factual grounds in a case. In others it was better to lay back and avoid wasting attorney’s fees. In some cases clients needed a sympathetic and understanding approach. In others, they needed a tough approach with someone that strongly suggested what they should do (or stop doing). Again, I started to realize that the answer was not going to be found with this approach.

So I did what comes natural to an attorney – I started researching what others were writing on this subject. And I read and read and really did not find that anyone was saying much substantive on the subject. So much for that idea.

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Posted On: January 21, 2009

Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Overview

Because Atlanta is located in Fulton County, Georgia, most divorces and family law cases in Atlanta go through this court system. What very few people know, however, is that divorces in Atlanta are handled very differently than any other part of Georgia. Because this system is so different from all others in Georgia, our divorce lawyers have created the Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia to better help people understand these differences and guide them through the Fulton County system. This blog will be the first in a series of blogs that will form our new guide.

In Fulton County, there is a specially designated Family Division that is comprised of three judges who are dedicated to hear only family law cases. These cases include: divorce, child custody, child support, visitation, modifications, domestic violence, alimony, legitimation, paternity, adoptions, step parent adoptions and contempt. While to outsiders to our current divorce and family law system this may not appear to be that large of a deal, it is important to remember that in every other county in Georgia any Superior Court judge can hear any type of divorce or family law matter, but they also must handle cases involving criminal matters (from DUIs to murder trials), personal injury cases (from auto accidents to class action lawsuits), business law cases (from non-compete litigation to contract disputes), and the list goes on and on.

The Family Division began as a Family Law pilot project in 1998. The goal of the Family Law Division is to provide for a case management approach to resolving cases. It provide the parties an opportunity to reach solutions that best fit their situation while under the supervision of the Courts. The Court does this by providing many opportunities to discuss issues and reach settlement. The county manages the cases as follows:

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Posted On: January 20, 2009

What do I do if I am served with a Complaint for Divorce?

Each person reacts differently when he or she is served with a Complaint for Divorce. Some people are shocked and rendered speechless while others may remain calm. The best advice that we can give to you is not to panic. As we mentioned in a previous blog, there are three ways that someone can be served with a Complaint for Divorce in Georgia. If you were personally served, you were either handed the Complaint and Summons from a Deputy from your county’s Sheriff Department or by a private process server, who is someone in plain clothes who is authorized by the court to serve the paperwork. You may also have received a package from your spouse’s attorney with a copy of the Complaint and Summons as well as an Acknowledgment of Service form. According to O.C.G.A. § 9-10-73, you can sign an Acknowledgment of Service form in front of a notary and you do not need to be served by the Sheriff or a private process server because you are waiving additional service.

Once service is effectuated on you, whether you are personally served or you acknowledged, it is important to know that the clock on your case starts running. Once you are served, we recommend that you contact an experienced family law attorney to explain the next steps in the divorce process. If you have children, we highly recommend retaining an attorney, such as the ones in our firm, to represent you. It is very important that you are aware of the upcoming deadlines and do not miss any of them. According to O.C.G.A. § 9-11-12(c), you have thirty days from the date on which you were served or acknowledged service to file an Answer with the Clerk of Court, which is basically a written response to your spouse’s Complaint for Divorce. It is important to calculate the date on which it is due and to keep track of this date on a calendar so you do not miss this important deadline. When you are preparing your Answer, you must respond to each individual paragraph in the Complaint. If you agree with one of the paragraphs of the Complaint, then you would put “admit”. If you disagree with one of the paragraphs, however, you would put “deny”. Also, you can file a counterclaim according to O.C.G.A. § 9-11-13(a).

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Posted On: January 18, 2009

Temporary Protective Orders and Domestic Violence in Georgia

The procedure for obtaining a temporary protective order for family violence is unique compared to other court filings. The victim must go to the Superior Court in the county in which the Defendant resides to file a Petition alleging specific acts of family violence, as defined in O.C.G.A. §19-13-1. If the presiding Judge finds that probable cause exists to establish that family violence has occurred in the past and may occur in the future, the Court may issue a temporary ex parte Order to protect the victim from further acts of violence by requiring the Defendant to stay away from the victim. The Order may also include provisions concerning who will live in the home, who will have custody of any children, who will pay the bills, and provisions for support. The Defendant will then be served with the ex parte Order.

Within the next 30 days, the Court will schedule a hearing which both parties will attend. At the hearing, the victim must prove his/her allegations by a preponderance of the evidence and the Defendant will have a chance to present his/her defense. The victim should bring all evidence to the hearing, such as pictures of bruises, scratches or other injuries, doctor’s reports, audio recordings, and damaged property. If the family violence is proven by a preponderance of the evidence, the Order may be extended for a longer period of time. Also, the Court can address any concerns not addressed in the initial temporary order at this time including child support, spousal support, custody and visitation.

Posted On: January 16, 2009

What is considered family violence in Georgia?

Unfortunately, we often get calls from prospective clients who have been victims of domestic violence (aka family violence) or who want a protective order against a spouse or former spouse. This relief can often be obtained through the Superior Courts of the State of Georgia. According to O.C.G.A. §19-13-1, “family violence” means the occurrence of a felony or commission of battery, simple batter, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass between past or present spouses, parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

If you are have been the victim of family violence remember that there are resources available for victims of family violence. Also, when appropriate, you can and should consider obtaining a temporary protective order for your protection and the protection of your family.

Posted On: January 14, 2009

Can I record telephone conversations in Georgia?

When two parties are going through a divorce, one party may feel that it is necessary to record the telephone conversations. For instance, if the parties in a divorce are going through a heated custody battle and one of the spouses is alienating the minor child against him or her, he or she may feel it is necessary to record the telephone conversations to use as evidence in his or divorce case.

According to O.C.G.A. § 16-11-66, you can record telephone conversations in Georgia, but you must be a party to the conversation. Therefore, if you and your spouse are having a telephone conversation, and both parties are in Georgia at the time of the telephone call, it is legal for you to record the conversation under Georgia law.

You cannot, however, record a telephone conversation between your spouse and his mistress because you are not a party to the conversation. There is an exception to this statute. If one of the parties involved in the conversation gives you his or her consent, then you can legally record the conversation according to O.C.G.A. § 16-11-66. In most cases, however, this is not possible.

Posted On: January 12, 2009

Benefits of Mediation

Mediation is one option for resolving a family law case. In mediation, the parties and their attorneys meet with a neutral, third party mediator to help them resolve the outstanding issues in their case. Our firm has been very successful in resolving cases through mediation and there are many benefits to the process.

At mediation, parties can get things through negotiation that they would not be able to get from a Judge at trial. A good example of this is the dependency exemption on tax returns. Under the IRS regulations, the custodial parent is entitled to the dependency exemption. Thus, a Judge cannot award this benefit to a non-custodial parent. Many times, however, a non-custodial parent will benefit more from the dependency exemption than the custodial parent and may even be able to have more expendable money to pay in child support if given the exemption. In that case, the custodial parent can use the dependency exemption as a bargaining tool and give it to the non-custodial parent in exchange for something else during the mediation process.

Parties are usually happier with the results at mediation as compared to trial because they have some control over the outcome. When you go into a courtroom, your case is in the hands of a Judge who will listen to evidence and make a ruling on the issues. Many times, this results in both parties being unhappy to some extent. At mediation, you exchange offers with the opposing party and come up with unique solutions that a Judge may not consider.

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Posted On: January 9, 2009

Georgia Child Support: Parenting Time Deviation

Starting on January 1, 2007, the formula for calculating child support in Georgia changed drastically. For details, see our previous post on how to calculate child support in Georgia. In addition to the incomes of both parties and necessary expenses (i.e. health insurance and work related child care costs), the Court can consider several deviations in calculating the non-custodial parent’s child support obligation.

One deviation that has come up often since the implementation of the new child support guidelines is the Parenting Time Deviation. The child support obligation table at the beginning of the child support worksheets takes into account expenses in an intact household. Thus, according to Georgia law, this deviation is applicable “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” O.C.G.A. §19-6-15(i)(2)(K)(i).

The Parenting Time Deviation is in the Court’s discretion and the Court is required only to consider the best interests of the child in making its determination. Further, a Parenting Time Deviation cannot be awarded if it seriously impairs the ability of the custodial parent to provide basic necessities, such as housing, food and clothing, for the children.

We recently had a case where the Father/Non-Custodial Parent had visitation time with the minor child totaling approximately 159 days per year, which is greater than “standard” visitation time. In spite of the fact that his income was nearly 6 times that of the Mother, he received a Parenting Time Deviation. The court in Forsyth County essentially held that he would have increased expenses due to his increased visitation time for which he would need additional expendable income and, thus, found this deviation to be warranted.

Due to the recent enactment of the new child support guidelines, there is not yet significant precedent on how the Judges are handling the Parenting Time Deviation. What is clear, however, is that when arguing for or against this deviation, the most important consideration is the best interests of the children.

Posted On: January 7, 2009

Georgia Child Custody Rights: Legal Custody vs. Physical Custody

When going through a divorce in Georgia with minor children involved, there are two categories of custody that you must consider: legal custody and physical custody. Legal custody has to do with a parent’s rights and responsibilities to make major decisions concerning the child, including the child’s health care, education, extracurricular activities and religious training. Physical custody has to do with where the child is physically living.

It is very common to see joint legal custody in divorce cases because it allows both parents to have equal rights and responsibilities for major decisions which, in turn, provides both parents the opportunity to remain involved in their child’s upbringing. With joint legal custody, one parent may have final decision making authority over major decisions in the event the parents are unable to agree. Alternatively, the parents can split final decision making authority with, for example, one parent having final decision making authority over education and extracurricular activities and the other parent having final decision making authority over health care and religious upbringing.

In Georgia, it is not as common to see joint physical custody as it is to see joint legal custody. Joint physical custody means that the child has substantially equal time and contact with each parent. In some situations, due to a parent’s work schedule or a child’s extracurricular commitments, joint physical custody is not practical. Parents should work together to come up with a custody and visitation schedule that works best for their particular situation while at the same time furthers the best interests of their children. Parents who do choose joint physical custody must work well together and have good communication as this arrangement will necessarily require them to see each other more often and cooperate continuously for the benefit of the children.

Posted On: January 5, 2009

For a Georgia divorce, do I have to retain a lawyer?

In Georgia, you are not required to be represented by a lawyer in a divorce action. When a party does not have an attorney and they represent themselves, the party is referred to as “pro se”. While several metro counties have resources available to help pro se individuals going through a divorce, we strongly recommend you look at the resources on the Fulton County Family Law Division web site even if your divorce is in another county because these pages in particular have many services to help out the pro-se party. Depending on the complexity of the case, however, representing yourself could be a very bad idea and the result could be far more costly than hiring an attorney.

If you have an uncontested divorce in Georgia, you can prepare the paperwork, file it with the court, have the opposing party served with a copy of the Complaint, and represent yourself in court. If you hire an attorney, however, they will do all of this for you. If your divorce is truly uncontested, the attorney’s fees involved will be reasonable and will make sure that all necessary paperwork is properly prepared and presented to the court to help make sure the process moves along at a steady pace. New laws surrounding custody have increased the amount of paperwork that must be filed in a divorce case involving minor children. If these documents are not filled out correctly, you can find yourself traveling to the court house on more than one occasion to finalize your divorce often costing more in lost earnings that the limited amount of time required for an attorney to handle the uncontested matter.

Even in uncontested divorces, if there are children involved or if there are substantial marital assets, it is generally in the best interest of the parties to hire divorce attorneys to represent their interest. In some cases, a good divorce lawyer can provide guidance (for example on tax issues) that could provide a substantial savings to the client and thereby justify the attorney’s fees.

For contested divorces, we strongly recommend hiring an attorney to represent your interest. Divorce litigation can be complex and the failure to timely and properly respond to different procedural requirements can have a substantial negative impact on the outcome of your case.

Posted On: January 2, 2009

What if you cannot reach your lawyer?

It is important to keep in touch with your lawyer. Failure to do so can cost you your case and have dire consequences. In a recent Atlanta divorce, a client could not reach his lawyer, despite repeated phone calls, e-mails, letters, and a visit to his office. He tried to reach the court to find out if there was an upcoming hearing, but they would not talk to him because he was represented by an attorney. Unfortunately, a hearing was held in his absence, and his wife essentially received not only the entire marital estate, but also 21 years of alimony. Despite his efforts to reach his attorney and the refusal of the Court to communicate with him, the Supreme Court of Georgia would not overturn the result.

If you are reading this for the first time and have been having troubles reaching your lawyer, the first thing to remember is do not panic. In the vast majority of the cases, the lawyer is typically tied up in Court, depositions or mediations. A family law attorney is out of the office and in Court more than most other attorneys who focus on other areas of the law. An experienced divorce lawyer will have trained staff to monitor Court notices and deadlines to keep the client informed as to the status of their case. Before firing your lawyer, which will often cost you money when the new attorney has to be brought up to speed, you should take the following steps:

1) Call the office and ask to speak with the paralegal or legal assistant who has been working on your case. If you cannot reach him or her, leave a message.

2) Follow your voicemail up with an e-mail, fax, or letter asking for a simple status update.

3) If you do not get a call or return e-mail within 24 hours, call the office and ask for, at a minimum, a telephone appointment to either speak with the staff person on your file, or your attorney.

4) If you are unable to have at least a telephone appointment scheduled, then you need to send a letter to your law firm and put them on notice of your intent to seek representation elsewhere. Immediately begin searching for a new lawyer