April 2006
Volume 2, Number 3
Table of Contents

Temporary Fee Awards

By jennifer j. rose

Temporary, or pendente lite, attorney fee awards in divorce cases often take more time to pursue or defend than the amount at stake. Many cases result in the award of a flat fee of perhaps $500 or $1,000, without regard to the complexity of the case, the issues, discovery requirements or even the amount of fees already received from other sources. Some family law judges callously remark “We’ll save those issues for final hearing,” expecting counsel to finance litigation.

An award of temporary fees requires more than merely filing an application supported by the client’s financial statement. As a first step and in an effort to spare the time and expense of a hearing, write a simple demand letter to opposing counsel asking that your client’s spouse contribute a specified, but reasonable amount, to your client’s temporary attorney’s fees by a date certain. Inquire how much opposing counsel has been paid. The worst result is no response.

And when that happens, convince the court that temporary counsel fees really are needed to adequately represent the client. Let the court know that the informal attempt to secure the other spouse’s contribution to temporary fees was unsuccessful. In your application, explain why this is not an ordinary, open-and-shut, divorce case by showing which issues are contested.

Often opposing counsel counterclaim for custody “just to preserve the client’s rights” when no genuine dispute exists. Use the temporary fee hearing as an opportunity to elicit stipulations that custody or other thorny issues are no longer in dispute.

Demonstrate the need for temporary fees by showing the court:

  1. A copy of your retainer agreement.
  2. How much you’ve been paid already.
  3. How much the opponent has paid his or her attorney.
  4. Issues in dispute.
  5. Each parties’ access to resources to fund litigation.
  6. Your client’s lack of understanding about the parties’ financial resources, lack of access to financial records, and, in your client’s own words, exactly what the client doesn’t know. Show something more than “Men always pay legal fees in divorce.”
  7. Whether appraisals, home studies, psychological evaluations, or extensive discovery is anticipated.
  8. How representation of this client is clouded by significant difficulties such as the client’s lack of education, physical or mental impairment, distance, or other pending legal problems.

Defending against a temporary fee award requires slightly different tactics.

Encourage your client to advance a reasonable amount toward temporary attorney’s fees. If an award is imminent, explain to the client how much it will cost to defend against the temporary fee application.

Now may be the time to encourage the client to weigh how seriously he or she wishes to pursue empty threats and weak claims.

Don’t wait for formal discovery. Hand over (with your client’s assent, of course) those records and documents which would be discoverable anyway without waiting for even a letter demand from opposing counsel.

Find out if there’s truly disagreement over valuations, and suggest that the parties mutually select an appraiser, and apportioning costs.

And in your resistance to the temporary fee application, show the spirit of your client’s gracious generosity and cooperation, slaying those dragons with kindness.

jennifer j. rose, editor-in-chief of GPSolo , is a lawyer and writer living in Morelia, Michoacán, Mexico. She can be reached at jenniferrose@abanet.org.

 

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