A. Introduction

It is important to both you and your lawyer that you talk about fees and costs at your initial conference. Unless fees and costs are discussed, either of you might make incorrect assumptions about what the other expects. False assumptions can lead to misunderstandings which can harm the lawyer-client relationship.

If you are concerned about the cost of your divorce, discuss with your lawyer how much you can afford to pay, how extensive the lawyer’s work needs to be, and any limits you think should be placed on fees.

If you feel you can’t afford the fees of the lawyer you consult, say so and ask for the names of other lawyers or agencies that can handle your case. You should make an agreement to pay fees only if you know you will be able to honor it.

B. Different Fee Arrangements

Fees charged by lawyers vary from state to state and community to community. Some arrangements are the: retainer, hourly fee, contingency fee, engagement fee, bonus (or results accomplished) fee, and flat fee. These terms are described in the Glossary.

Fees are based on many factors including the complexity of the case, the skill needed to perform the service properly, whether agreeing to represent you requires your lawyer to turn away other clients, the amount involved, the results obtained, the experience, reputation, and ability of your lawyer, the time limitations you impose, and the circumstances under which the services will be performed.

C. Written Fee Agreements

Your lawyer should ask you to sign a written fee agreement. You are entitled to an opportunity to review the fee agreement, to think about it, and to get answers to any questions you have about it. You should read and understand it. Once you sign, the fee agreement is a legally binding and enforceable contract.

D. Costs And Expenses

Different law offices have different procedures for handling costs and expenses. Those procedures are usually described in a written fee agreement. You may be responsible for paying out-of-pocket costs incurred for your case by your lawyer, such as photocopies, postage, long-distance calls, court filing fees, process servers, court reporters, computer time and similar expenses. You will be responsible for paying any experts that you and your lawyer decide to hire. If you have questions about costs, ask your lawyer.

E. Security for Payment

Your lawyer may ask you for security for payment of fees and costs in the form of a mortgage on your real estate or a lien on your property. You should carefully review and understand the security agreement and other papers. It is a good idea to review them with another lawyer before signing them. Similarly, your lawyer may ask you to have a friend or relative guarantee payment of your fees. Be sure that the details are thoroughly discussed and that you and the guarantor both understand the papers before signing them.

F. If You Find You Can’t Pay According To Your Agreement

1. Work with your lawyer to solve the problem.

Talk to your lawyer. Most lawyers will try to resolve fee problems with clients and often something can be worked out that will satisfy both of you. Your lawyer may want some security for payment (if permitted in your state), a promissory note, or a regular payment schedule. You might be able to borrow from friends, family or an institutional lender.

There are many ways to handle a divorce. If you have instructed your lawyer to do everything possible on your behalf, you might rethink the cost of your strategy. If you revise your instructions so that your lawyer does only those things essential to your proper representation, your fees and costs may be less.

2. If you can’t resolve the problem after talking to your lawyer, here is what might happen.

a. Withdrawal

Your lawyer might withdraw from your case.

b. Liens

Some states allow a lawyer to have a lien against your property or files until the fees have been paid. Even the states that allow liens have strict rules about how they can be enforced. Before you find yourself in this situation, you should ask your lawyer to explain the rules and procedures to you. You might also want to consult another lawyer about your rights and responsibilities as to such liens. Most states require lawyers to turn over all of the client’s papers to the client when withdrawing from a case.

c. Mediation

If you and your lawyer can’t resolve a fee dispute, you might agree to take the dispute to a mediator. A mediator is a person who meets with both of you and tries to help you work out a settlement, usually by reaching a compromise.

d. Arbitration

Arbitration is presenting your case to someone other than a judge who has power to decide the case. An arbitration award can be made into a court judgment and enforced. Your written agreement with your lawyer may contain an agreement to arbitrate any fee disputes. Some states provide you the right to arbitrate even if it’s not in your fee agreement. Arbitration can be faster, simpler and cheaper than litigation in court.

e. Lawsuits

If you do not pay the fees you have agreed to pay, the lawyer has a right to sue you for the unpaid fees. In that event, the dispute will be decided by a judge or jury. Many lawyers will only sue a former client as a last resort.

G. Some Questions and Answers About Fees and Costs

1. I don’t want the divorce; why do I have to pay for it? We all have expenses for things that happen to us that we don’t bring on ourselves. We don’t ask to get sick, but if we use health care professionals, we have to pay our medical bills.

If you are involved in a divorce and choose to be represented by a lawyer, you must expect to pay for those services.

2. Why do lawyers charge the fees that they do? Lawyers are professionals who run a business with all the usual overhead. Supply and demand influence legal fees as they do the cost of most things. So lawyers who are in greater demand generally charge higher fees.

3. How much will my divorce cost? It’s impossible to predict how much your divorce will cost, although your lawyer may be able to give you a range. The cost of the case depends on many factors, some beyond your lawyer’s control. These factors include the kind of lawyer your spouse hires, how you and your spouse behave in the litigation and the court to which your case is assigned. Generally, the more things you and your spouse can agree on, the lower your fees will be.

4. Is there anything I can do to help keep the fees down? Yes. Be actively involved in your case. Take the time and trouble to learn what’s going on. Follow your lawyer’s instructions. Volunteer to help with the work whenever possible. Have reasonable expectations of your lawyer. Watch for ways to settle issues. Don’t insist on fighting to the last drop of blood over small issues, or for a supposed principle. When talking to your lawyer, avoid long, detailed stories unless your lawyer assures you it’s necessary information.

5. Can I make my spouse pay my fees? A court may order a spouse to contribute to the fees of the other spouse. If you get such an order, your lawyer will credit what is actually paid to your account. But seeking such an order does not change your obligation to pay the balance that you owe to your own lawyer. Also, many lawyers do not accept cases on the possibility that the other spouse will be required to pay the fee by court order.

6. What can I do if I can’t afford the lawyer I want? Just as none of us can have everything we want or purchase things that we can’t afford, you may not be able to afford the lawyer of your choice. In most communities, there is a wide variety of providers of legal services. Everyone should be able to find help at a price they can afford. There may even be another lawyer in the office of the lawyer of your choice who is quite competent to handle your case and whose rates are lower. For those who can’t afford to pay any fees, free legal aid is available in some areas.

7. Will my lawyer wait until the case is completed for me to pay fees and costs? Not usually. Each month, law firms must pay their staff, rent, utilities and other operating costs. You can’t realistically expect your lawyer to wait until your case is over to be paid. If you do not pay your lawyer when you are billed, the firm may have to borrow money to pay office expenses. If money must be borrowed to finance your divorce case, you should borrow it, not your lawyer. Although some lawyers will wait for part of their fee, especially if given some security, most will expect you to pay your fees as the case progresses, even if you have to borrow it.

8. Why does my lawyer charge me every time we talk on the phone? Abraham Lincoln said, "A lawyer’s time and advice is his stock in trade." It’s still true. Time on the phone is just as valuable as the other time your lawyer spends on your case. But there are several ways you can minimize fees for phone calls. Accumulate several questions, write them down, and ask them all during one call. When giving your lawyer information, it may be more efficient to give it to a secretary or to send it in writing. Nonetheless, every person and every case is different. If you need the reassurance and are willing to pay for it, it might be worth it to you to call more often.

9. What if I can’t pay for appraisers and other experts? If you don’t have money to hire experts, you may have no choice but to proceed without experts. It may also be possible to get a court order for expert’s fees to be advanced by your spouse or from marital property. In any event, it is not your lawyer’s obligation to pay for experts which might be needed on your case.

10. Why do I have to pay a lawyer to force my ex-spouse to comply with the marital settlement or judgment? No one can guarantee that your spouse will honor agreements or court orders. Courts will enforce orders if an appropriate request is made, but it is not the lawyer’s responsibility to provide enforcement for no fee.

SOURCE: American Academy of Matrimonial Attorneys, Divorce Manual; A Client Handbook