Awarding Attorney’ Fees in Divorce Cases

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 What are Payment Arrangements and Attorney Fees?

According to the Federal Trade Commission Consumer Advice, when you retain a lawyer, you may discuss how to pay for their services. Most attorneys charge by the hour, or part of the hour, they spend working on a case. Some lawyers charge a flat fee for a service, like writing a will. Others charge a contingent fee and get a share of the money their client receives in a case. Your lawyer should inform you about any additional fees they may charge you for expenses related to your case.

For instance, copying documents, court filing fees, or depositions. Be sure to have the fee agreement in writing. Each time you receive a bill from your lawyer, review it to see how your money is being spent. Consult the lawyer to explain any charges you do not understand.

For retainer agreements, before your lawyer begins to work on your case, they may inquire about paying a financial deposit, called a retainer. The lawyer may use the retainer to pay expenses and fees. As for the hourly rate, if you pay a lawyer by the hour, your final cost depends on the duration of your case. A lawyer’s hourly rate depends on their skill and experience.

An experienced attorney may charge a higher hourly rate than a beginner, but they may take fewer hours to complete the job. Before you agree to pay a lawyer an hourly rate, you need a written estimate of the number of hours it will take to finish your case, so you have an idea of your total costs.

What is the Flat or “Fixed” Fee?

If you pay a flat or “fixed” fee, you pay the lawyer a set dollar amount for a service, like writing a will. Most attorneys charge a flat fee for services such as drafting incorporation papers, handling an uncontested divorce, or filing a simple bankruptcy.

Before you decide to pay for a service with a flat or fixed fee, be aware of what services the fee does and does not cover. It is recommended to inquire with the lawyer what will occur if your uncomplicated service requires more work than expected.

What is the Contingency Fee Arrangement?

If you obtain a lawyer on a contingency, it means their fees will be a set percentage of the total money you get if you win your case, plus reimbursement for case-related expenses such as depositions, expert witnesses, and filing fees. In a contingency fee arrangement, the lawyer may take on the risk that your case might be unsuccessful. If you do not get any money, your lawyer will not receive attorney’s fees.

In some contingency fee arrangements, you may have to reimburse the lawyer for case-related expenses even if you do not win your case. Therefore, in divorce cases, it is important to understand the nuances of awarding attorney fees in these situations. It is critical to be aware of exactly what your agreement covers.

You may want to look for a contingency fee arrangement if you do not have money to pay a lawyer’s retainer or hourly fees upfront. If you are thinking about a contingency fee arrangement, know that:

  • Most states limit the kind of cases that are allowed to have contingency fee arrangements. For instance, many states do not allow contingency fee arrangements in criminal cases;
  • You can negotiate the size of the contingency fee;
  • The size of the contingency fee should be based on how much work the lawyer will accomplish. You may be able to negotiate a fee agreement that gives the lawyer a lower percentage if the case settles quickly and a higher percentage if the case lasts longer and proceeds to trial;
  • You may be able to negotiate a sliding scale fee. For instance, you can negotiate a fee that pays the attorney 30 percent of the money you receive up to $10,000, then 20 percent of any additional money you get up to $50,000. There is no “official” or “standard” amount for a lawyer’s contingency fee, but most states limit the attorney’s fee to a “reasonable” percentage of the total amount recovered.

Are there Different Types of Divorce and Annulment Proceedings?

The Delaware courts allow for different types of divorce and annulment. Divorces and Annulments can be contested or uncontested. Uncontested divorces can be decided in two ways. The different types of divorce are described below:

  • Contested Divorce or Annulment: If the Petition for Divorce/Annulment is contested, meaning the person responding to the petition challenges material information in the petition by filing an Answer, the matter will automatically be scheduled for a hearing;
  • Uncontested Divorce or Annulment: If the person responding to the petition does not file an Answer within 20 days of receiving the Petition for Divorce/Annulment OR files an Answer agreeing with the request for a divorce, the petition is uncontested.
  • The Petitioner may request that the Court decide the Petition for Divorce/Annulment based solely on the papers that are filed by both sides, without the parties appearing in Court for a hearing; OR
  • The Petitioner may choose to have the Court decide the Petition for Divorce/Annulment after holding a hearing which the Petitioner must attend and the Respondent may attend.

Keep in mind that the court will utilize the same standard for granting a divorce regardless of the type of divorce that is chosen. However, different filing requirements exist for each type of divorce. In most states, the Family Courts have developed simple, straightforward packets that contain instructions explaining what forms you need to file, how to complete the forms, and sample forms to which you can refer.

The court also provides answers to frequently asked questions and other informational materials to guide you with the divorce process. The same informational materials can be utilized if you would like to have your marriage annulled. There is more information available on the website regarding the divorce and annulment process.

Who May File for Divorce or Annulment?

Divorce or annulment applies to the following situations:

  • Marriages and Civil Unions: Either you or your spouse have resided in the state for at least 6 months immediately preceding filing for divorce or annulment; OR Either you or your spouse has been stationed in the state as a member of the military for at least 6 months immediately preceding filing for divorce or annulment;
  • Civil Unions Only: You and your spouse do not live in the state and your state of residence does not allow civil unions to be dissolved and your civil union was solemnized in the same state;
  • Legal Separation: Furthermore, before you file for divorce, you and your spouse must be legally separated. For instance, under Delaware law, to be legally separated, you can still be separated if you live in the same house so long as you do not share the same bedroom with your spouse or have sexual relations with your spouse.

When Do I Need to Contact a Lawyer?

If you are experiencing issues regarding attorney fees in your divorce case, it is advised that you seek a local divorce attorney to assist you with the process.

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