Awarding Attorney’ Fees in Divorce Cases

In a divorce case, attorney’s fees are generally calculated based on the hourly rate of the attorney and any support staff utilized in a person’s divorce case. Depending on a lawyer’s experience and location, an attorney’s hourly rate can vary considerably.

Generally, an attorney’s fee structure will be outlined in the fee agreement that is executed between the attorney and the client.

An attorney fee agreement is a written contract, which may or may not include a retainer fee, that is needed to secure an attorney’s services. Thus, fee agreements provide legal proof of a contract between the attorney and client. A well-written attorney-client fee agreement should certain information, including:

• The total amount of any initial retainer payment that may need to be made before the attorney begins legal services;
• A clause as to whether or not the retainer is refundable or immediately collected in full;
• The attorney’s billable rate, along with the support staff’s billable rate.
  • Once again, hourly billing is the most common pay structure for divorce cases.
  • Many attorneys will often use support staff such as law clerks, paralegals, or even associate attorneys to reduce their hourly fees for the daily tasks involved in managing a divorce case;
• A description of the legal services that the attorney is being retained to perform.
  • For example, a fee agreement for a divorce case will often specify that the attorney is accepting the client and will render services involved with their divorce case;
• The contact information for all the parties to the contract, including the attorney, support staff, and the client; and
• The fee structure for any other items outside the attorney’s hourly rate, including fees for filing costs, copies, long distance phone charges, mail expenses, travel expenses, etc.

In addition to an hourly fee arrangement, an attorney may also structure their fee agreement as a contingency agreement or a flat fee agreement. A flat fee agreement is typically utilized in a divorce case where the outcome of the case is more predictable.

For example, if both parties to the divorce case are in agreement with the terms of the divorce, then an attorney may offer a flat fee agreement to handle the filing of the case, the drafting of the necessary documents, and their appearance and representation at the final prove-up of the divorce case in court.

A contingency fee agreement means that a lawyer charges no fee to take or work on a case, but earns a percentage of the settlement or final judgment award, if any. It is important to note that the Model Rules for attorneys prevent them from utilizing contingency fee agreements for domestic relations matters, such as divorce cases.

What Is the Average Cost of a Divorce Lawyer?

In short, it depends. There is no average cost of a divorce lawyer, as each divorce case is unique and may require handling different issues then other cases. There are several factors that may affect the overall cost of a divorce attorney and divorce case, such as:

• Contested vs. Uncontested: Whether or not a divorce case is contested or uncontested will have a great effect on the cost of a divorce lawyer.
  • In an uncontested divorce, both parties will agree on the terms of divorce. As such, there is less work and hearings involved in completing the divorce, which results in this being the least expensive form of divorce.
  • In a contested divorce, one of the parties refuses to agree to the terms of the divorce, which results in numerous communications, negotiations, and hearings to determine the issues of the divorce case. As such, attorney’s fees will be higher in contested matters, as more attorney work is required to complete the case;
• Net Worth: If one or both of the party’s has a great deal of assets, and there is no agreement for the division of marital assets, then more work will be required to obtain a proper determination of the value of marital assets.
  • This work might require the assistance of an appraiser, forensic accountant, economist, or other analyst to determine the value of the marital and individual assets, resulting in higher case costs;
• Children: If there are children involved in the divorce case, and there is no agreement as to child custody and child support, then custody and child support arrangements will need to be determined.
  • This means that an attorney will likely have to obtain temporary orders regarding child custody and support during the pendency of the divorce case, as well as negotiate and argue those issues in court. This results in higher attorney’s fees.
  • Some divorce cases also require psychological evaluations, the appointment of an attorney ad litem, or child custody evaluations, resulting in additional fees; and
• Other Costs: In some cases, a specific court may require other costs, such as both parents completing a parenting class prior to ruling on custody, the appointment of an attorney ad litem, or court ordered mediation.
  • All of these court ordered costs are generally billed to each individual party.
  • Further, if real estate is involved in the divorce case, an attorney may have to draft additional documents transferring the property, such as recording deeds, and then file those documents with the appropriate office after the final order of the court.

As can be seen, there are numerous issues that may be involved in a court case. However, in general uncontested matters where the parties can agree on the issues of the case will cost significantly less than contested matters where the parties cannot agree on the issues involved in the divorce case. An uncontested matter can even cost as low as the filing fee for the case in some matters.

When Will a Court Award Attorney’s Fees in a Divorce Case?

In the United States, each party to a lawsuit generally pays their own lawyer’s fees. This is known as the “American Rule,” as in many other countries the losing party pays the other party’s attorney’s fees. However, there are situations in which a court may order the losing party in a case to pay the winner’s legal fees. This is referred to as “fee shifting.”

In the case of divorce matters, courts do have the authority to award attorney’s fees. Generally, family law courts will allow an award for attorney’s fees in a case where the court feels that one party was acting in bad faith, such as specific actions during the lawsuit, or as a result of conduct that gave rise to the divorce lawsuit.

For example, if one party was abusing the other party, or their children, and that abuse led to the divorce lawsuit, then a court may order the party that was committing the abuse to cover the reasonable attorney’s fees for the party that filed for the divorce.

Additionally, in cases in which there is an imbalance in finances, such as one party sacrificing their employment or education opportunities in order to raise a family or support the other party, a court may order the party with more assets to pay for the party that cannot afford legal representation otherwise.

It is important to note that a court has wide discretion on awarding attorney’s fees. In general, an attorney will make a request for attorney’s fees prior to any hearing. Then, at the hearing, the judge or jury will hear that attorney’s request for fees and make a decision on whether or not their request is warranted.

Do I Need an Attorney for Help With Awarding Attorney’s Fees?

As mentioned above, in order for a court to award attorney’s fees, an attorney will generally have to make a request for an attorney fee award. However, a court also has the discretion of awarding attorney’s fees unilaterally in some cases. In any case, if you are undergoing a divorce, especially if there are children involved, it may be in your best interests to consult an experienced divorce law attorney.

An experienced family lawyer will be able to help you understand all of the fees that may arise during your divorce case based on their initial consultation with you. Additionally, an attorney will be able to answer any questions you may have regarding attorney’s fees, and whether or not they believe the fees may be recoverable in your case. Finally, an attorney can also represent you in court, as needed.