Reprinted with permission from Family Advocate, Volume 42, Number 1, Summer 2019, at 8. ©2019 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Clients involved in a family law proceeding for the first time will inevitably have many questions about how the case will proceed and what it will mean for themselves and their children. But cost is never far from their minds. To help you prepare your clients for what lies ahead financially, below is a list you can share with them; it presents, in question-and-answer format, some of the most common concerns related to the cost of a divorce.
Why do I have to pay? I did not want the divorce.
Statutes and case law govern the principles to be considered in determining how legal fees and costs are paid. However, no recognized rule places the financial cost on the party who initiated the divorce.
Does the loser have to pay the winner’s fees?
No. That is not a principle commonly applied in American law. Also keep in mind that in a divorce case, identifying a “winner” or “loser” is difficult. Often, some aspects of the decision will favor one party and other aspects the other. In limited instances, a party who makes a claim that is totally unsupportable under existing law and that is determined by the court to be “frivolous and groundless” may have to pay the other party’s fees. This situation, however, is rare. Sometimes in an enforcement proceeding, a party found to have violated an existing court order may be ordered to pay the fees of the party seeking enforcement.
Does my lawyer have to keep working for me if I can’t pay the bill?
This matter is usually one for discussion between you and your lawyer. A lawyer is typically entitled to seek court permission to withdraw from your case if you do not abide by the fee agreement.
What can I do to keep legal costs down?
Promptly collect any records or other documents your lawyer requests. If your lawyer must remind you several times or must get records from another source, that will involve more effort and time. Prepare for telephone calls or office conferences by making a list of the issues or questions you want to cover with your lawyer. A single organized call to address three questions generally will be more efficient and less costly than three separate calls. It also is a good idea to connect with friends, relatives, or your therapist, and not your lawyer or his or her paralegal, when you need to vent your feelings.
How much will my case cost?
Unfortunately your lawyer may be unable to answer that question at the beginning of your case because the total fees will likely depend on the difficulty of the issues and the time involved. As your case progresses, your lawyer may be able to give you estimates as to the cost for particular aspects of the case. Discuss those costs with your lawyer in light of potential benefits to your case. An exhaustive “leave no stone unturned” approach can be costly and is unwarranted. If a lawyer has quoted you a flat fee for a particular matter, make sure you understand what that fee does or does not cover.
Who will pay my legal fees?
The same statutes and judicial decisions that govern other financial aspects of a divorce case determine whether you will have to pay your own legal fees or whether payment or reimbursement may come from other sources, such as the proceeds of a marital asset or contributions from your spouse.
Originally published in Family Advocate, Volume 42, Number 1, Summer 2019, at 8; reprinted in GPSolo eReport, Volume 9, Number 7, February 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Family Law, or the Solo, Small Firm and General Practice Division.