What does a retainer fee in a divorce case cover?

Posted on Jan 19, 2022 by Katie Carter


You probably haven’t hired an attorney before. And, if you have, it probably wasn’t a family law attorney. (And, if it was a family law attorney that you hired, you probably aren’t reading this article because you’ve been there, done that!)

It’s a nerve wracking experience! I can tell you that, even for me, hiring an attorney is unsettling, so you’re not alone. It’s a big deal. You’re trusting someone – usually, someone who is mostly a stranger to you – with one of the most important situations in your life.

In general, lawyers handle uncomfortable or unpleasant situations. It’s kind of our job. But no one handles issues that are more personal or have more profound and lasting impact on people’s lives than family law attorneys. So, you’re right to ask questions and to be sure you understand before you just jump, headfirst, into your divorce case.

The retainer is often a little bit confusing for a lot of people. We’re often more familiar with personal injury attorney type fee structures, with the whole ‘no fee unless we get money for you’ spiel. That’s not at all the way family law works. (Actually, for us, it’s considered unethical – so even if we wanted to take a case on a contingent fee basis, we would not be allowed to do it.)

As an alternative, we work on retainers. That means that we take money up front – a retainer fee – put it into a trust or escrow account with your name on it, and then bill from that account as work is done. It’s your money, and it stays your money, until we do work to earn it. Most firms establish a minimum amount of money that your trust account must contain. At our firm, we call this a ‘minimum security deposit’, though I personally think that language is not as transparent as it could be. Still, that’s what we call it.

The money is yours, and stays yours, and the unspent portion is completely refundable. So, if you open a case for a $5,000 retainer and we reach an agreement and have only spent $2,000, the $3,000 is still in the account and would be refunded – unless, of course, you rolled it over into your uncontested divorce retainer, and then you’d receive whatever was left over at the conclusion of your uncontested divorce.

We don’t work without retainers. It’s kind of an insurance policy to ensure that our fee is paid. I won’t get into all the logistics, but it’s really challenging for us to get paid after the fact – and, I can tell you from experience that, once services are rendered, people are much less willing to pay for the work. They got their results, you know? And, I’m sorry to say, but we have things – like mortgages and student loans – that we have to pay for. Very few attorneys can afford to work without getting paid, probably much like you can’t afford to do your job (however much you might enjoy it – or not) without getting paid.

So, what does a retainer fee cover in a divorce case?

The main differential between retainers is between separation agreement cases and contested divorce cases.

A separation agreement case does not cover any litigation. A contested divorce case does. So, in a separation agreement case, we will not be taking your case to court if you aren’t able to reach an agreement – you’d have to retain, again, for a contested divorce. So, if you have a separation agreement file opened with a firm and you’re served with divorce papers, you’d have to retain the attorney for a contested case in order for your attorney to be your attorney for the purposes of your ongoing litigation.

A contested divorce retainer is only for the contested divorce. So, if some other legal issue comes up – like an assault or battery, a DUI, estate planning, or even a protective order – you’d have to retain for those matters individually. It’s not a ‘catch all’ retainer, so that your attorney is your attorney for every legal matter that comes your way during that time; it’s only for the purposes of moving the divorce action forward.

Some attorneys do handle other matters, but not all do. You might want to talk to your attorney, if some of these issues come up during your case, but don’t just assume that your family law attorney could or would handle your criminal case as well. In many cases, we don’t crossover to other areas of law. In our firm, we handle protective orders, but generally not assault and battery or other really criminal issues, except for Lori Michaud – but, even then, it’s on a case by case basis, and at her discretion.

Even if we don’t handle a particular area of law, though, we can usually give a referral! We know a lot of other attorneys, because our cases tend to touch on various different areas of law, so we can often point you in the direction of someone really good to handle any other issues that you have come up.

Otherwise, though, we’ll handle what comes up in your case – emails, letters, drafting documents, attending settlement conferences, and, yes, in contested cases, even litigation. What’s allowed in separation agreements is slightly different than contested cases, which can involve filing motions, completing or issuing discovery, and actual litigation, but, in either case, it’s pretty comprehensive.

It’s all then billed at the attorney’s hourly rate, which is set forth specifically in the retainer agreement, and then billed in increments of a .10 of an hour as work is done. So, essentially, it all costs the same, it’s just a question of how long something took the attorney to complete.
For more information about retainer agreements or to schedule a consultation, give our office a call at 757-425-5200.