Fees and Costs

Lawyers’ Fees

The amount of a lawyer’s fee varies with the level of experience and the locale of the lawyer. The more experience, expertise, and skill a lawyer has, the higher the fee (usually, but not always). Lawyers in urban areas generally charge more than lawyers in rural areas. The rates of suburban lawyers often are in between.

Most family lawyers charge on an hourly basis. A lawyer’s total fee will be equal to the total of the hours spent on the case, multiplied by the lawyer’s hourly rate. Different lawyers within a firm may have different hourly rates. Some lawyers charge different rates for appearing in court and for working in their offices. (The courtroom rate may be higher on the theory that working in court involves extra skills and pressure. Other lawyers view their office skills and courtroom skills as equally valuable, and, thus, charge the same rate for both types of service.)

A lawyer’s time that is billed to a client is not just the time the lawyer spends with the client or in court. Lawyers may spend a significant amount of time in their offices reviewing documents, conducting research, planning strategy, talking to witnesses, talking to the opposing counsel, drafting letters, and preparing papers for filing in court.

If other lawyers in the office or paralegals spend time on the case, their time usually will be billed too. A paralegal is a person with specialized legal training who, although not a lawyer, assists the lawyer with legal tasks. Under a lawyer’s supervision, a paralegal may do many of the same things a lawyer does, but, in most states, a paralegal may not represent a client in court.

A lawyer’s secretary also helps the lawyer handle cases, but in most offices the secretary’s time is not billed separately. (In some offices, if a secretary must work overtime because a case is on an expedited schedule or is usually demanding, the secretary’s time might be billed separately.)

Costs

In addition to fees for the lawyer’s (and paralegal’s) services, clients also usually pay costs. Costs are the out-of-pocket expenses that are associated with a case. Costs may include:

• Court filing fees (a fee paid to the court by a person who files a lawsuit or responds to one);
• Fees to a process server (who delivers papers to the opposing party advising the opposing party that a lawsuit has been filed);
• Subpoena fees (to persons who must appear in court or deliver documents to a party; the subpoena fees may include the cost of travel);
• Court reporter fees (to the court employee or private service that records court proceedings or depositions and then prepares a written transcript of what took place; a deposition is a procedure by which an attorney prepares for a possible trial by asking questions of a party or witness under oath);
• Experts’ fees (for example, fees to an accountant to ascertain the value of a business or pension plan, or fees to a psychiatrist or psychologist to conduct a custody evaluation);
• Photocopying and telephone expenses (particularly if there is a large quantity of photocopying, or if there are long distance phone calls or faxes);
• Travel expenses (if the attorney must travel out-of-town in connection with the case).

Fixed Fees

Although most attorneys charge hourly rates, some will charge a fixed fee for handling an entire case. Attorneys who advertise that they will charge only a certain amount for a “simple divorce” (an amount often in the range of $400 to $1,000) usually mean that the stated amount will be the attorney’s fee if the case is very simple. In other words, if virtually nothing is contested and the paperwork is routine. If a case becomes more complicated, expect higher fees. If a lawyer is not willing to enter into a fixed fee arrangement, you should ask the attorney about the range of possible fees and costs and the factors that will make the fees higher or lower.

Many lawyers are reluctant to commit to a fixed fee since it can be difficult to predict the amount of effort necessary to handle a case at the beginning, particularly if it is uncertain how many issues will be in dispute and how contentious the opposing side will be. In addition, use of an hourly fee, instead of a fixed fee, can help an attorney control a client and limit expenses that are not cost-effective. For example, if a client sees that fees are mounting, the client will be less likely to telephone the attorney over every small dispute or insist that the attorney expend substantial efforts regarding a piece of property that is worth a relatively small amount.

Other Fee Arrangements

Attorneys in family law cases typically charge a retainer or an advance on fees. This, in effect, is a down payment on the attorney’s fees and costs. In some cases, the attorney may seek the entire fee up-front. If a case is eventually handled for an amount less than the retainer or advance, the attorney should return the unused portion of the fee.

Lawyers also may require a refresh arrangement by which the client agrees to always maintain a credit balance in his or her account with the lawyer. When the credit balance drops below a certain amount (such as $1,000 or $5,000), the client will be obliged to provide more funds. This arrangement is somewhat similar to having a security deposit with a landlord – which, in part, serves as a guarantee that the final payment will be made. Many lawyers accept credit card payments, and the fee agreement with the client may provide that charges will be processed automatically through the credit card if the balance drops below a certain amount.

Contingency fees, like those used by attorneys who handle personal injury cases, are generally prohibited in family law cases. With a contingency fee, an attorney collects a fee only if a particular result is achieved, or, alternatively, the attorney may collect a portion of whatever monetary award is received by the client. Courts do not want to give attorneys a vested interest in a divorce. If, for example, an attorney were to receive a portion of whatever property award a client received in a divorce and the client wanted to reconcile with his or her spouse, the attorney could be in a position of opposing what was best for the client because the attorney wanted to receive a fee.

So contingency fees are generally prohibited in family law cases. An exception will be made in some states if the amount of money that is due a client is certain. If, for example, a client is owed a fixed amount in past-due child support or alimony, an attorney might be able to enter into a contingency fee to collect the past-due support since the likelihood of a conflict of interest related to the client’s possible reconciliation is minimal.

Fee Agreements

If you hire an attorney for representation beyond a consultation, most attorneys will give you a written fee agreement stating the services that will be covered, the cost of services, and the times at which payment will be due. You may choose to sign the agreement when it is presented, but it is quite permissible for you to take the agreement home, read it over, and think about it before deciding whether to sign. You should always read the agreement carefully and ask the attorney any questions you may have about the agreement.

In divorce cases, courts usually have the power to order one party to pay the other party’s attorney fees if there is a substantial difference in the income or property of the parties. If, for example, the husband earns a great deal more than the wife, the husband may be ordered to pay all or a portion of the wife’s attorney fees. If both parties have similar earning capacities or if both parties receive ample amounts of liquid assets as part of the divorce, the husband and wife are more likely to pay their own fees.

One party might also have to pay the other party’s legal fees if one party has shown bad faith towards the other. For example, if you engage in misconduct or do something you should not do (such as not paying child support or interfering with other party’s access to the child), then you are likely to have to pay the fees of the other party. In addition, if you make legal or factual arguments that are frivolous, meaning they have no legal merit, then you (or your attorney) may be required to pay the legal fees incurred by the other party in responding to those arguments.

If one party is ordered to pay the fees of the other party, that is not a blank check for any amount of fees. The fees must be reasonable. A court can look at the facts of the case and decide what is a reasonable fee for the issue before the court.