As an attorney that focuses on divorce and family law, I often receive questions about what to expect with regards to attorney fees and costs in a divorce case. If you’re facing a divorce and have questions about the fees and costs associated with an attorney, I can help guide you through some of the more common financial scenarios that may occur during a divorce case.
It is important to remember, however, that if you have questions about the billing process or the retainer you agreed to pay the firm you are working with, you should always consult your legal services agreement first. The situations outlined below are meant only to give you an example of how some situations may be handled financially during a divorce.
Here are answers to some of the common questions, which clients have asked me about attorney’s fees and costs in a divorce case. As you will see, the answers to these questions really depend on a client’s financial situation going into the divorce case as well as what the client’s financial situation will look like as a result of the court’s property division order.
Income Disparity Issues
My spouse earns substantially more than I do. Is it possible to obtain a court order requiring my spouse to pay my attorney's initial retainer?
The answer to this question depends on your financial situation. If you have no access to joint financial accounts and you do not have savings over which you have control, , then there is reasonable likelihood that the court will require your spouse to pay your attorney's initial retainer so that you have the ability to retain an attorney to represent you. Sometimes, the court will require your spouse to pay the retainer in several installments.
Even if you do have access to your shared financial accounts, the court may still require your spouse to pay your attorney's initial retainer if there is a large disparity between your earnings and your spouse's earnings. However, it is impossible to predict how a judge would rule in this situation, since there are many variables; including the nature of the contested issues, the size of the marital assets, and the liquidity of the marital estate. If the marital estate is illiquid (real estate for example) and joint savings are modest, then the court may require your spouse to pay the initial retainer. If you and your spouse have substantial savings and investments the court may rule that you can each pay your own attorney and reserve for later decision how the attorney’s fees will be charged against marital assets.
If my spouse's earning capacity is substantially greater than mine, will the court require my spouse to pay all of my attorney's fees at the end of the case if it goes to trial?
The answer to this question depends on the facts of each case as perceived by the trial judge. The general rule is that a party who receives sufficient marital assets to pay his or her attorney's fees will be expected to use marital assets to pay these fees, even if there is a disparity in earnings between the parties.
A court might, however, elect to deviate from this rule in the following cases:
- the assets are not liquid
- one party is receiving the family business or professional practice
- one party has a large earning capacity and has been ordered to make payments to the other spouse to equalize the marital division.
Estimating and Minimizing Costs
How much will my case cost?
Unfortunately, it is very difficult to predict the cost of a divorce case. The cost will depend on a number of factors including: (1) the extent to which the parties maintained detailed financial records; (2) the complexity of the factual and legal issues in the case; (3) the number of interim motions filed by the parties; (4) the amount of time the attorney has to spend counseling the client or organizing the client's financial data; and (4) whether the case is tried or settled.
If the parties have not kept good financial records, then it may be necessary for the attorneys to reconstruct the parties' financial history, unless the parties' finances are very simple. Particularly if the parties are involved in a family business and do not have separate bank accounts for personal and business expenses, the process of separating business from personal finances can be very time-consuming.
What can I do to minimize the legal costs while my case is going on?
There are several things you can do to minimize the costs you incur during a divorce settlement. By preparing ahead of time, you can save yourself a lot of money and headache. Here are a few tips to get you started:
- Organize your financial papers.
The divorce process requires the parties to exchange financial information. Tracking down and organizing all financial account statements, deeds, insurance policies, tax returns, loan accounts, and inventories of personal property will cut down significantly on the amount of time your attorney and his/her legal assistant will have to devote to this process.
- Analyze and make a list of your living expenses.
Financial planning is an integral part of a divorce case. Whether or not we are going to request interim spousal support, I request each of my clients to give me a detailed list of monthly expenses. The more detailed the list, the less work I have to do to determine the client's post-divorce financial needs.
- Develop a good support network to minimize "venting" time with your lawyer.
Whether your divorce is amicable or not, the process will likely be extremely stressful for you. While I make clear to each of my clients that I am not a psychologist, I do understand that my clients look to me for guidance and I am willing to listen to their concerns.
However, time is money and I can handle a client's case more cost effectively if the client has the support of a mental health care professional, a minister or pastor, and a good network of friends to use to work through the difficult emotions which often accompany the breakup of a relationship.
- Be willing to stay focused on your long-term goals rather than fighting about every issue that comes up during the divorce.
Because of the nature of a divorce case, it is likely that the outcome of a trial will favor each side on some issues. Therefore, the divorce lawyer's goal is to get the best outcome possible for the client based on all of the facts and circumstances of the case.
Like a military strategist, a divorce lawyer must know when to fight and when not to fight. This is an essential element of the art of trial practice. During the litigation process, disputes are going to arise over a variety of issues. When a dispute arises, I will discuss with the client how to respond to the dispute. However, I will never engage in a battle over visitation, discovery or finances to solely to meet the client's emotional needs to "win."
The more willing a client is to focus on his or her long-term goals, the less time we will have to spend discussing and ruminating on whether to respond to each issue, which might come up along the way.
- Make a list of the personal property, which you would like the judge to award you and then prioritize your list.
Understand that fighting over personal property will probably cost you more in legal fees than the value of the property over which you are fighting. Therefore, in order to avoid spending thousands of dollars arguing over every purchase you made during your marriage, you should try to narrow your "wish list” ahead of time. Decide what you can and can’t live without, and try to be reasonable about your list. The shorter the list, the easier the negotations will be.
Understanding what to expect and how your actions and attitude can affect overall costs is important when you are going through a divorce. Preparation is the key to keeping the divorce process as smooth, simple, and cost effective as possible. To find out the answers to more frequently asked questions about costs and other common situations that occur during a divorce, please contact me today.