What to Expect: Fees
Fees: An Overview
We’re sometimes asked how much a divorce costs, and there’s no good answer. It’s like asking how much it will cost to repair termite damage to your house. There’s no way to know until someone gets in there, and even then, it’s not always apparent how bad the damage is.
Of course, the reputation and skill of your attorney is an important factor in the amount of your fees. An attorney fresh out of law school will not charge what someone who has been practicing family law for 30 years will charge. Whether you want someone with little reputation or skill is of course another question.
A similar issue is something that lawyers call client access. If you have a question and call your attorney, you want her to call you back that same day. If you send an email, you want a prompt response. If you need to speak in person with your attorney, you want him to be available. The ability to get in touch with your lawyer when you need him is what we mean by client access.
If you ask around before you hire an attorney (as you should), you will learn that some lawyers offer client access, and some don’t. Some lawyers refuse to answer phone calls, instruct their secretary to make excuses, ignore emails, and duck out of a side door when a client shows up (this really happens).
On the other hand, you are probably seeking a lawyer who considers it a core responsibility to provide complete client access. Of course, client access simply means time, and you already know that time costs money. Lawyers who won’t take your call aren’t charging you for the phone call, but whether you want a lawyer who offers minimal client access is another question.
A third issue is what your spouse does. It may seem counterintuitive, but each spouse affects the other’s attorney’s fees. If your husband fights over custody of the children, his decision to do so drives up your cost. If your wife is unreasonable about alimony, her decision drives up your cost. If your spouse instructs his/her lawyer to fight over every little thing, that drives up your cost. In most divorces, there are a hundred things that people potentially could fight over — the more of them that your spouse decides to fight over, the more expensive your divorce is going to be.
The following is merely a partial list of issues that will drive up the cost of litigation. The more of these that your spouse fights with you about, and the longer that he fights with you, the higher your costs:
• Whether to agree to a no-fault divorce
• Alimony
• Division of assets
• Child custody
• Visitation
• Child support
• Other expenses for the children
Finally, you have to decide in advance what your budget is, just as you do when making any other significant financial decision. Many litigants begin divorce with the attitude that “money is no object.” As noble as this sounds, it is usually unrealistic. Even in matters as important as family law, money is always relevant to the decisions being made.
As with our other posts, we’ll use a husband and wife as the example, with the husband earning more money. We use this for example purposes and understand that no two families are the same, and there are plenty of instances where a wife earns more than her husband.
Getting Your Spouse To Pay Your Attorney’s Fees
A. The General Rule
It is not uncommon in contested divorce cases in Mississippi for one spouse to ask the chancellor to order the other spouse to pay some, if not all, of her attorney’s fees. In more complex cases, the request can be expanded to include the fees for expert witnesses, accountants, private investigators, court reporters, and the other professionals needed to properly litigate the divorce. The success of that plea depends largely upon ability and need.
By ability, we mean that if the other spouse — let’s say the husband — simply does not have the resources to pay his wife’s fees, then he will not be ordered to do so. Chancellors are naturally reluctant to order people to do things that they can’t do.
By need, we mean that the wife must show that she is unable to pay her attorney’s fees.
The amount awarded lies within the chancellor’s discretion. We often hear the complaint that either no amount was awarded or else that the amount awarded was far less than the amount actually needed for the attorney. Nevertheless, it would be unusual for an attorney to accept an engagement solely on the prospect of what could be collected from the other spouse. To the contrary, attorneys expect their clients to pay their fees, and this obligation proceeds independently from whether the chancellor orders the other side to pay them.
Another option is to agree that some marital property asset (such as a bank account or parcel of real property) be liquidated, with each party receiving a portion — the understanding being that the funds so obtained are earmarked for payment of attorney’s fees.
B. Mandatory Attorney’s Fees
There are a few situations where an award of attorney’s fees is mandatory. The law requires an award of the reasonable attorney’s fees necessary to enforce a judgment by contempt of court. Similarly, most divorce contracts provide that a party who breaches the contract will have to pay the other’s attorney’s fees incurred in curing the breach (or similar language).
An award of attorney’s fees to the plaintiff in a paternity suit is also mandatory.
Finally, in grandparent visitation cases, the grandparents are often required to pay the attorney’s fees of the parents whom they are suing.
How Lawyers Charge for Divorce in Mississippi
A. Hourly Rates
Traditionally, lawyers charge by the hour. As Abraham Lincoln put it, “A lawyer’s time and advice are his stock in trade.” That is what he “sells.” So if a lawyer charges $350/hour and spends eight hours in court with you, he will bill you for $2,800 ($350/hour x 8 hours). If he only spends four hours in court with you, then the bill will be $1,400.
Under the hourly rate arrangement, lawyers will charge an initial retainer, generally anywhere between $1,000 to $10,000, depending on the complexity of the case. In extremely complex cases, the retainer will be much higher.
The lawyer and his staff will bill the client at their hourly rate, as discussed above. If and when the retainer is exhausted, depending on the arrangement reached with the attorney, the client will either be required to post a new retainer or else will be billed each month for the new charges that exceed the amount of the retainer.
Sometimes an “evergreen retainer” is necessary. Under this system, the client posts an agreed-upon amount, such as $5,000. Each month, the lawyer withdraws the amount of that month’s bill from the evergreen retainer, and the client is required to replenish it to its original amount of $5,000. This way, the lawyer knows that he will be paid for his efforts before he works on the case.
The fewer hours that a lawyer spends working on a case and the lower his hourly rate, the lower his bill will be. We suppose that to pay the lowest bill imaginable, one would simply (1) hire the cheapest lawyer in town, and (2) instruct him to do as little work as possible. The good news is that the attorney would not charge much, but the bad news is that he is hardly likely to achieve the result that his client had in mind when she hired the lawyer in the first place. There’s no worse feeling than to realize in the middle of trial that your lawyer isn’t up to the task.
On the other hand, the more attention that your lawyer devotes to your case, the more prepared he will be. The more prepared that your lawyer is, the more likely that you will obtain a favorable outcome. As we’ve noted, preparation and client access take time; time costs money.
It is important for the client and attorney to regularly communicate not only about the upcoming projects that should be completed to prepare for trial, but also their anticipated cost. You should not hesitate to let your attorney know what your budget is. There is nothing wrong with foregoing some projects, such as taking depositions or filing certain motions, even though they could be helpful, in order to lower the cost of the case.
B. Flat Fees
The alternative to the hourly rate arrangement is the flat fee system. We’ve written elsewhere that there are four phases in a divorce case: (1) the beginning, culminating in a temporary hearing; (2) discovery; (3) settlement negotiations; and (4) trial. You can read more about these four phases in our Ultimate Guide to the Process of Divorce.
Under the flat fee system, the lawyer charges one single fee for handling each of the four phases of the divorce case. Every lawyer is different; we’ve seen lawyers charge $10,000 to $25,000 per phase, sometimes significantly more. Once you write the check, you don’t have to write your lawyer another one, unless/until your case begins the next phase. But if your case is resolved before it reaches the next phase, you don’t write your lawyer any more checks.
We should also point out that some lawyers will charge a flat fee for handling the entire case, all four phases, from soup to nuts as the old saying goes. If all four phases of the divorce process are to be paid in one flat fee, you can expect a good lawyer to insist on a considerable amount, exceeding $50,000 or $100,000, or more. Divorce cases have a way of taking off in unexpected directions, so the lawyer will “bake in” to his fee the time/expense of handling these surprises.
Moreover, the lawyer has to bear in mind that since his client has no further attorney’s fees to pay, his incentive to settle the case is greatly reduced. Obviously, the longer the case goes on and the more time that the lawyer devotes to it, the better the flat fee arrangement is for the client. A flat fee arrangement is not so favorable if the case is resolved promptly.
C. Contingency Fees
It is not uncommon for attorneys to charge a contingency fee in tort cases, such as personal injury, wrongful death, and product liability matters. Under a contingency fee, the client never pays anything unless there is a recovery. No recovery, no fee. That’s a big upside for clients who cannot otherwise afford an attorney. The downside is that contingency fees run anywhere from 25 percent to 50 percent of the total recovery, which can run into the millions of dollars if the case has a great deal of recoverable damages.
Contingency fees are not allowed in family law cases. There are a few narrowly drawn exceptions to this rule — collection of some judgments, for example. But in nearly all circumstances, family law attorneys work on an hourly rate or flat fee basis.
