Attorney’s Fees and Divorce

It’s scary, when you’re thinking of divorcing and splitting up all the things you’ve acquired jointly during the course of your marriage, to think also about the money you may have to pay to have an attorney represent you. It’s confusing, too, because different attorneys handle fees differently. You’ve heard, I’m sure, of the contingent fee scenario – essentially the “No fee until we get money for you!” model so often advertised by personal injury attorneys. That’s probably the most popular fee arrangement that regular people are familiar with, and it’s no surprise to anyone that we get asked about this particular model all the time.

We’re also asked things like, “Can I get him to pay my attorney’s fees?” and “Can you give me a rough estimate of how much my case will cost?” They’re good questions. Valid questions. Important questions. But, sometimes, they’re often very tricky questions to answer.

Can divorce attorneys take cases on a contingent fee?

A contingent fee is when an attorney takes a fee only if they win the case, and then they take a percentage of the winnings. In personal injury cases, this fee usually ranges somewhere from 25-40%, depending on how complicated the case is. It’s also not uncommon for a fee to be a certain amount (say, 30%) unless the case goes to trial, in which case the fee bumps up to correspond with the increased level of difficulty and time involved (to something like, for example, 40%). None of this is written in stone; it’s set forth in the retainer agreement that the client signs at the beginning of the representation.

Divorce attorneys can’t take cases on a contingent fee. It’s considered unethical, and we could be disbarred from it. Besides, how would that work, logistically? There’s no lump sum settlement. Would that mean we’d take 30% of your child and spousal support, and 30% of the retirement accounts you were awarded, and 30% of your share of the equity in the home? How would anyone pay, then, for custody cases, where money doesn’t exchange hands? It gets very confusing, which, I imagine, is why we can’t do it.

In a personal injury case, the only money you handle is the money that relates directly to the lawsuit, which is partially why it can be so efficiently divided that way. In a divorce case, that’s not the way it works. We divide people’s entire lives, and that includes money that was earned years and years ago. We can’t take 30% of that. It just…doesn’t make sense, practically.

So, how do divorce attorneys bill for cases?

Divorce attorneys take cases either on a flat fee (which is fairly unusual) or an hourly basis. We have retainer agreements with our clients (all attorneys do, in fact) that outline exactly how the case will be handled and what the costs will be. Most attorneys work on a retainer (which is an amount of money put in trust at the beginning of the case), and then bill hourly from that amount as work is done. As the trust account declines over the course of the case, the client replenishes it so that it maintains the amount agreed upon in the retainer agreement.

There are advantages and disadvantages to this model, of course. The chief disadvantage that our clients cite up front is the fact that they have to have an amount of money on hand to hire an attorney at the beginning of the case – which, depending on your employment history and personal situation, may be more or less difficult. There are advantages, too – any settlement or award you receive is solely yours, and you are only billed for the work needed (as opposed to a flat fee case, where the fee is taken regardless of how long your case took to resolve).

At the end of the day, though, legal work is generally pretty expensive. But, when you think about it, it makes sense, because an attorney in a divorce case is protecting tens of thousands (or even hundreds of thousands or millions) of your hard-earned dollars over a lifetime of working. Not only that, but the attorney is protecting you from expensive and time consuming litigation later on down the line. It’s not just right now that you need protecting; you also need an agreement or court order that is airtight enough to not mean that you need to fight your ex later over what it means or how certain items will be handled.

How much is a retainer in a divorce case?

Typical divorce retainers range pretty dramatically depending on the case. Negotiated cases (separation agreement cases) usually start with retainers between $2,500 and $5,000. Contested cases – cases where you have to go to court to litigate the results – range even more broadly, from $5,000-ish to $15,000 and on up.

Retainers range, depending on how complicated your case is and how much time the attorney thinks it’ll take. A retainer really isn’t a good gauge for total overall costs in a case, though, because it’s not a flat fee. When the retainer runs out, you’ll have to replenish your trust account. If you don’t, your attorney can withdraw from your case. So, in all honesty, I wouldn’t advise you to shop around for the best retainer amount (though I do understand that a ridiculously high retainer would be a barrier to hiring a particular attorney).

We bill hourly as work is done, and, honestly, the attorney’s hourly rate is a better barometer of what a case will cost. If you want to compare attorneys for how much the case might cost overall, look at what they charge hourly. In our area, most attorneys charge somewhere in the neighborhood of $150-500+ per hour, depending on their level of experience.

Can I get him to pay my attorney’s fees?

Unfortunately, probably not. Just because he earns more or because he was the one who wanted the divorce doesn’t mean that the court will force him to pay your fees. In fact, quite the opposite.

Most courts feel that it is your choice to hire an attorney, and your responsibility to ensure that the attorney you choose to hire is one that you can afford to pay. To make an analogy, your husband shouldn’t be forced to pay Mercedes prices just because you didn’t buy a Kia, which was really all that your budget afforded.

Is it fair? I am not here to debate the merits of the law or the decisions of the judges, but only to explain the mindset so that you don’t end up retaining an attorney you can’t afford to pay. Definitely don’t hire someone at the more expensive end of the spectrum in the hopes that your husband will be forced to pay – he almost certainly won’t, or, at least, not the whole bill, and you’ll only do yourself a disservice if you hire someone you can’t afford and then end up with an attorney who has withdrawn and no money to hire a new one. Definitely NOT ideal.

We always ask for attorney’s fees, just in case, but you should be prepared to pay your own. Most of the time, that’s what happens.

For more information about how divorce cases work or what to expect, visit our website (LINK) or give our office a call at (757)425-5200.