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FAQ's Attorney Fees in California Divorce Actions

Q. What about attorney's fees for divorces?

Aggressive divorce fees A. This is a topic which is critically important for you to understand and explore with a prospective lawyer before you hire them; most people don't inquire about how attorney fee obligation in any detail.

There are numerous aspects to the question of attorney fees in family law cases.

Q. What are attorney's hourly rates? What is reasonable and customary?

A. Lawyers' hourly fee rates are not set by law, but there are a few limitations imposed by law. Hourly rates is a matter of contract between the parties. The State Bar has little to do with the amount charged except that in the event of a fee dispute, an attorney may not recover fees that are considered unconscionable or unfair. Attorneys can be ordered to return such fees.

Lawyers set the price for their services. Market forces should determine what people will pay. For instance, lawyers with many years of experience (fifteen or more), or who have special certifications or expertise, or who passionately attend continuing education seminars, ought charge a higher hourly fee. These lawyers invest considerable time, energy, and money in staying abreast of family law and related fields. There is value added to the quality of the services they perform over those of some less skilled colleague. For instance, Michael Peterson and I have invested considerable time and expense in becoming licensed as State Bar Certified Specialists.

But market forces don't always work efficiently. For one reason, lawyers like other service professionals have raised their fees without regard for their intrinsic value or simple fairness. It is a matter of egoic pride for many attorneys how much clients will pay. Clients have no practical way to assert influence over this process.

In the Coachella Valley hourly rates for family law practitioners run from $325 to $450, depending upon their experience and expertise. You should ALWAYS hire only a Certified Family Law Specialist. Lawyers who don't bother to become board certified are not committed to their craft, and cannot see or navigate complex issues or high conflict divorces.

Our fees are currently between $375 and $425/hour for my services, depending upon the complexity and "tone" of the case. Michael Peterson bills at $365/hour.

Ironically, charging a lower fee can present problems for lawyers. Some people assume that the best lawyers charge the highest fees. This is not necessarily so, and has enabled less skilled lawyers or more aggressive attorneys to hide behind higher rates. Some of the old school lawyers who are the least efficient in handling cases and tend towards the greatest conflict are the most resistant to lowering fees. Lawyers who charge the highest fees should be certified specialists, period.

We think we can have it both ways - that we can be dynamically superior and competitively superior as well.

Q. What does the lawyer's staff charge and how are responsibilities delegated?

A. Whatever can be delegated to a lesser charging worker should be, so long as the work product is actively supervised by an attorney. There are a number of tasks that can be handled efficiently and inexpensively by staff or legal assistants. They provide a huge cost benefit to you. So long as the lawyers are not delegating legal functions to unsupervised persons this practice should be encouraged and supported. Diane Dancy, who manages our office, came to me as a divorce client in 1992 and has become the most competent legal assistant within the Coachella Valley. Her daughter Kristin Dancy (whom I've known since she was 5) came on board six years ago and become a certified California paralegal.

Q. Is there a Divorce Retainer and if so, how much is it?

A. Lawyers universally require retainers which really ought to be called "retainer deposits".

divorce retainersIn family law the process of a case involves a beginning, middle, and an end. In order for lawyers to devote their energy and attention to the business of a case, they need to be assured of continuing payment as services are rendered. You don't want them doing superficial work because they fear you can't pay. They need to be on an equal footing vis-a-vis the other spouse's attorney, meaning it is inappropriate that one side's fees are being covered while the other side's fees are not. Parity and equality is assured through a retainer deposit.

The amount of a Retainer Deposit is typically the minimum amount the attorney is willing to accept to take on the responsibilities of a client's case, and so set aside the time to work it and forego other cases and to begin work. Lawyers determine the amount based upon their perception of the complexity of the case, how much they estimate it may take to handle the matter through completion or some other stage, the timing of their involvement (i.e., is a trial scheduled next month?), the identity of the other attorney (i.e., does that attorney have a reputation for aggressiveness and sharp tactics?), the attitude of the other spouse (are they likely to resist disclosing needed information?), whether there are sufficient resources available to take the case to its conclusion, creditworthiness, how long they must wait to be paid in full, whether the client has a history of hiring and firing prior attorneys, and the lawyer's perception of how cooperative or conflicted a potential client may seem.

Sometimes setting an exorbitant retainer deposit ($15,000 or more) is a way of saying "I'm not sure I want to accept your case, but I can't resist that big a fee". Some lawyers demand large divorce retainers to feel and make their clients feel that they are important - it can be a sale's technique.

For the simplest of cases with the least experienced family law practitioners, the minimum retainer deposit tends to be at least $2,500. Otherwise retainers tend to be approximately $3,500 for simpler marital dissolution. Sometimes we will accept less for limited appearance cases - simple support or custody modifications or domestic violence cases.

The unused portion of a Retainer Deposit is always refundable to the client upon termination of the attorney's services to the extent the fees have not been earned. In other words, retainer deposits are never earned upon receipt. This is required by the State Bar rules of professional conduct. Lawyers can be disciplined for ignoring these rules.

As with any other subject, you should ask an attorney how he or she sets their retainer. But be careful, lawyers do not want to accept clients whom they perceive as difficult: Indeed, they will quote those potential clients the highest retainer deposits!

Q. Does the Retainer need to be replenished from time to time?

A. Retainer Agreements often provide for the replenishment of the Retainer Deposit, by new deposit, under certain circumstances typically when the case seems headed for trial. There are "evergreen" retainers where the client is required to maintain a fixed amount in trust at all times, and to replenish that amount when it dropped below an agreed upon number. We frequently use them.

Q. Do attorneys take credit cards?

A. Most attorneys accept credit cards. Understand though that they must pay a fee to the credit card company to process the charge, which can be substantial. We accept all major credit cards, as do most attorneys who have significant practices.

Q. Will lawyers accept partial retainers or payment plans?

A. Lawyers have differing practices on accepting partial payments. This depends upon their perception of you. If they worry that you could become unreasonable or that you have destructive expectations, a prudent attorney will not accept part payment. The person who wants to cheat the other side will be distrusted and by her attorney!

On the other hand, once a relationship is established attorneys will work to help you afford their services. If you meet your promises and treat the attorney honorably, they will reciprocate. This includes all types of creative arrangements, including installment payments.

We work with our established clients on a case by case basis.

Q. What are the attorney's billing practices in terms of periodic statements?

A. The attorney should agree to give you, and you should actually receive, billing statements on a frequent recurring basis that are detailed and complete. We bill each month. If you have questions about the charges, ask. It is best to inquire immediately and not as an after thought at some later time. Any ethical attorney will be grateful to dispel any confusion or concern you have over their billings or their billing practices. You are entitled to review your billing statements upon demand.

Q. What are the refund policies if I reconcile with my spouse or switch attorneys?

A. Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention. Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees. They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money. They are required to give a full statement and explanation of your fees and charges upon request. Refusal to do within 10 days or less may be a cause for State Bar discipline.

Q. What about court ordered attorney fees?

A. If a court order directs the other side to pay your attorney fees in your attorney's own name, then they are the one entitled to collect and receive these monies, but only to the extent they are actually owed these sums. For instance let's say your Wife is ordered to pay $5,000 to your lawyer, Attorney Smith. You discharge Attorney Smith and hire Attorney Jones, and Attorney Smith is only owed $2,200. Attorney Smith is only entitled to that sum and you and your new attorney are entitled to the balance. I have written a number of blogs on this subject, so please use the on-site search engine in the upper left of your screen for current information about the state of the law.

Q. How do I dispute the amount of fees my former attorney charged?

A. I intend to blog this soon, but in the meantime please check out my Resources page under "Hiring an Attorney/Attorney Fee Disputes."

Q. What about other sources to pay attorney fees? Can I secure the fee obligation with real property and so pay later?

A. Generally, other than cash, credit cards, or borrowing, the only other way to secure representation is through a FLARPL (pronounced flarple). This is a lien, or security interest, against your equity in real property. It is disfavored by Judges and lawyers, and is hard to secure over the objection of your spouse. But it is a viable way to get an attorney on board in a difficult case if the attorney is willing to accept it. The current erosion of equity in the real estate market demonstrates why attorneys are reluctant to utilize this method to secure fees. Here is a recent Blog from Michael Peterson that discusses the mechanics of FLARPLs and charging liens, along with exemplars.

Q. What will my family law case cost?

A. This is a difficult question to answer because no one has a crystal ball and each person's needs differ according to their circumstances. Attorneys resist answering this question. Any estimate can change as the case progresses, so if a lawyer gives their best guess but the assumptions are naive or optimistic the estimate proves useless. Much depends on how the other side behaves, and many things aren't known at the outset.

Still, an experienced lawyer can provide projections. You have every right to press this question before you retain the lawyer, but beware: Some lawyers may understate reality and give you an unrealistically low projection, and while your tendency might be to go for the cheaper estimation, I'd tend to trust the lawyer who over-estimates as being more credible.

Cases which can be amicably resolved usually should cost under $4,000, including your filing and process service fees of about $500. The average case where one side or both starts out conflicted, or where there are some mildly complicated financial or custodial issues to straighten out, costs at least $4,000. Obviously, cases involving businesses, other complexities, unusual facts, or 2 or more parcels of property can cost more.

When you hire a lawyer, they should tell you how they plan to tackle the issues. Setting out a strategy, goals and a timeline can significantly improve efficiency, and it is certainly a source of relief for clients.

Q. What about divorce contingency fees?

A. These are unavailable in family law cases.

Q. Are flat fee agreements available in family law proceedings?

A. Not necessarily. They are frowned upon by the California State Bar, and yet many attorneys offer them. They can be a good solution, but with some risks. Flat Fee agreements limit the lawyer's compensation to a fixed total sum. This may shift the burden of shouldering extra time costs of litigation to the lawyer, while limiting your obligation. Costs may or may not be part of the flat fee. In modification proceedings or amicable dissolutions they may be an excellent way to place a ceiling on what you pay.

We rarely accept flat fee cases because we have found they encourage some people to litigate endlessly.

Q. What are unbundled legal services?

A. The California legislature has made it easier for family lawyers to get in and get out of a case to perform specific tasks like making court appearances. This allows people to get the help they need without being forced to pay the lawyer for what they might not, thus making services more affordable. This can be similar to a flat fee arrangement.


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by Desert Divorce Services Attorney Thurman Arnold, CFLS

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