Divorce is both legally and financially complex. The cost of assuming financial responsibility for debts, bills, and other considerations that were previously paid in part or in full by a spouse, is daunting. This does not include the rising legal fees associated with ending a marital union. Many soon-to-be divorced individuals struggle with how to pay for representation during the process, because of the expenses and because it might be difficult to understand what the costs cover.
Flat Fee Billing
For uncontested divorces, paying a single flat fee may be possible as a viable alternative to other options, like paying a retainer, when the case is unlikely to require much time investment from the divorce attorney. If the divorce turns out to be more complicated, clients in this situation should expect to pay additional fees.
There are three types of retainer payments that are common:
- General retainer
- Special retainer
- Retaining fee
These all refer to a payment in advance for legal work performed by the attorney. Paying a retainer is a common practice in divorce cases because it simplifies matters for the attorney and the client.
A general retainer pays for the availability of legal representation during a certain time. A special retainer is for an actual case or project during which the client knows he or she will require legal counsel, such as during a divorce case or when negotiating child custody. A retaining fee is somewhat different. This is a specific and agreed upon sum paid upfront for ongoing legal work. The money is placed in trust and used as necessary for legal expenditures. After the legal matter is concluded, anything remaining in the trust account is returned to the client.
This payment option is similar to a special retainer. The attorney receives payment by the specific job or task performed for the client, rather than in a lump sum. For people in certain difficult financial situations, this may be less burdensome than paying a retaining fee; however, not all attorneys may agree to this less common arrangement. This may lead to the client managing some parts of the case without professional assistance, including acquiring and filling out the correct forms.
For less complex divorces, using task-based compensation may also offer advantages, especially if both parties wish to finalize the divorce quickly. This has the potential to allow the two parties to share expenses, leading to a better ultimate settlement.
Can the Other Spouse Pay for Expenses?
Splitting the cost of a divorce is relatively common, whether by agreement or as part of the settlement. For one spouse to pay the majority of costs, the question becomes more complex. This may be possible, however. This might be accomplished if one party requests a court order. A court order is a directive issued by the court or judge that requires a person to do something.
As an example, in Massachusetts, in order to request the order, an individual must:
- Fill out the motion form to order the defendant or plaintiff to pay the cost of retaining an attorney.
- Prepare an accurate financial statement.
- Make copies and file the documents with the court.
- Be prepared to explain to the judge why a court order to pay the retainer is necessary.
The order might require the defendant, who would be the spouse who did not initiate proceedings, to pay part or all of the retaining fee required by the plaintiff’s attorney. The situation can also be reversed, and the defendant might also ask that the plaintiff pay his or her legal fees. Although this sounds relatively simple, the process involved in getting a court order is complex. Additionally, the judge may or may not grant the order.
The judge may or may not grant the request for an order or may opt to order that the defendant/plaintiff pay a reasonable amount toward the legal fees. In the latter cases, the individual may wish to examine the merits of paying for representation through task-based compensation or pursue other options for their divorce case.
As with many legal matters, the exact method by which a spouse might request a court order to pay for legal expenses will vary according to the state of residence and its laws. Some states might allow a person to request that the other spouse pay the retaining fee for an attorney.