Attorney Fees in Divorce Cases

Yes, attorney fees can be expensive. My current rate of $200 per hour is average for attorneys in Grand Rapids, although below average for attorneys of my experience and specialization.  In this essay, I will explain how attorney fees are calculated and billed, factors which affect the amount of attorney fees, provide a range within which attorney fees usually fall, and provide suggestions for holding down attorney fees.

As do most attorneys, I charge for my time based upon an hourly rate. Attorney fees are payable in advance on a retainer fee system. That is, I set an amount of money (a “retainer”) to be maintained on deposit by my clients for their future attorney fees and court costs. The retainer is deposited to a bank account where I keep money that belongs to my clients, called an attorney retainer trust account. As court costs or other expenses are incurred, I write checks off that account to pay the costs and expenses. I am on a monthly billing cycle. At the end of the month, I send out bills showing the court costs and expenses incurred; the work I have done; the time expended; the fee charged; the court costs I have paid out of the retainer account; the amount I have paid myself out of the retainer account; the amount left on deposit for future court costs and attorney fees (if any), and any additional amount that you must pay. The amount of the retainer depends on the amount of work I anticipate having to do in in any given month during the case, my goal being to have enough money on deposit monthly to pay for the work I did that month. If there is money left over in your retainer trust account when services are competed, the remaining balance is refunded to you.  For details about how I charge attorney fees, see the sample retainer agreement.

The amount of the retainer deposit depends upon how complicated your case appears to be, and therefore how much time I think I will need to spend on it in any given month.  One reason I don't charge for first consultations is that I need time to figure out how complicated your case is in order to set a retainer fee amount which is tailored to your case.  I don't think it would be fair to charge you just to find out how much the retainer fee would be.

As a general rule, the retainer fee on most divorce cases will be $1500.  This amount may be less if you have an easy case, or more if you have a difficult case.

Variations in How Lawyers Calculate Attorney Fees:

You might think that you could tell which attorney will charge more for a divorce by comparing  hourly rates. However, the  amount of time the attorney spends on your case is much, much more important than the hourly rate.  There is no set amount of time every lawyer spends on every divorce case, or for any given task or service provided in a case.  Some lawyers work faster, some provide better advice which short-cuts litigation, and others will "fight to the death" for you, charging every step of the way, until you run out of money or cry "enough!".  There are even variations in how lawyers count time.  You cannot effectively estimate the fee in your case based on the lawyer's hourly rate.  

Some attorneys charge in minimum units of a quarter hour, others in units of one tenth of an hour. An attorney charging $150 per hour in quarter hour units will charge $37.50 for a short telephone call ($150 times .25/hr). An attorney charging $200 per hour would charge $20 for the same telephone call ($200 times .1/hr). I charge based upon units of one tenth of an hour, which favors my clients over my best interest.

Some attorneys treat the initial retainer as earned when paid. For example, assume an attorney charges a non-refundable retainer fee of $2000 with an hourly rate of $200; if work is completed in only 5 hours, the attorney will have earned a fee of $2000, his effective hourly rate was actually $400 per hour, and there will be no refund to the client. If the retainer is treated as a deposit toward the actual time expended, the fee would be 5 hours times $200 per hour, or $1000; there would be a $1000 refund to the client. I treat the retainer as a deposit, not as a minimum fee. If the attorney fees and expenses are less than the amount on deposit, the balance is refunded. Again, this favors my clients over mine, but I think this is the fairest way to do it.

Some attorneys work more efficiently than other attorneys. Much of the work that attorneys do is not done in the presence of the client. One attorney might charge twice the time for a task that another attorney would charge for the same work. The only real feedback you have are detailed bills. Some attorneys provide bills for their time that do not state in detail the work they did; other attorneys provide detailed bills. For example, two attorneys doing the same work at the same hourly rate of $200 might bill for the work as follows:

Attorney A’s bill might read:

For services rendered in January: $400

Attorney B’s bill might read:

Prepare summons, complaint, record of divorce, letter to court clerk; receive Summons from Court; letter, pleadings to Defendant; copy to client. 1.0 hour at $200 per hour = $200

Maybe Attorney A really does work twice as slow as Attorney B, but without Attorney A listing the work done, you have no way of knowing why Attorney A billed $400 for work Attorney B thought should cost $200.  I provide detailed bills for my clients.

Some attorneys charge a bonus over and above their hourly rate for better than expected results.  This has always sounded to me like "bill happy clients more".  My goal is to do an excellent job in every case.  I don't charge extra for doing my job.  There will be no unexpected "bonus" fee at the end of the case.

Much more important than the hourly rate is the amount of time the attorney puts into the case, which takes us to an inherent conflict of interest between attorneys and their clients.  Attorneys want to make more money; clients want to pay less money.  An attorney makes more money by putting in more hours.  It is not surprising that attorneys can always find more to do on their client's cases.  An attorney who adopts a “fight to the death” attitude toward litigation without regard to cost or the likelihood of success can make more money per case.  The client can end up spending large amounts for attorney fees over issues which should have been settled, and end up with the same result at ten times what it would have cost if the attorney had only explained the likelihood of success and explored the possibility of settlement. I am constantly amazed at some of the things I see other attorneys arguing over in court that never should have gotten that far. The essence of professionalism is to place the client's interest ahead of the attorney's interest (yes, even when it costs the attorney money).  I consider myself to be a professional first, and businessman second.  It is in my clients' best interest to spend as little as necessary to achieve a fair result.  Therefore, one of my goals is to minimize my clients’ attorney fees if possible by exploring settlement before rushing off to court over every dispute. If I think you want to argue over something that youare likely to lose, I will tell you what I think that so you at least has the option of not throwing away money on unnecessary attorney fees.  As a businessman, I prefer to spread my time over a larger number of cases that will be referred to me by satisfied clients, rather than trying to make a lot of money off a few cases resulting in unhappy clients. 

Here is an example of the primary reason why the hourly rate will not have much effect on the amount of your attorney fee:

Example:   Bob and Mary have two young children.  Bob filed for divorce because he is tired of the constant arguments.  So far the divorce has gone fairly smoothly.  Bob agreed to move out of the house, Mary has primary custody of the children under the Temporary Order, the six month waiting period is almost up, tempers have cooled, and the parties have an informal, tentative settlement agreement that has not yet been written up by the lawyers.  Mary, feeling that the divorce is basically over except for the formalities, has her boyfriend spend the night with her while the children at home.  Bob is angry and calls his lawyer.

Option 1:  Lawyer A charges $250 per hour.  He tells Bob that he has a right to be angry and they can file a motion asking the Judge to prohibit Mary doing it again. The chance of success is 90%.  However, the divorce is almost complete, and the prohibition on overnight boyfriends will likely be dropped in the final Judgment of Divorce, so Mary will be able to resume having the boyfriend over after the case is over.  Eventually, she will probably remarry, perhaps to this boyfriend.  Going to Court over this will cost about $1000 and will only affect Mary's behavior over the next few months.  Even though Bob and Mary have been getting along well, raising this issue may stir up emotions and may cause the tentative agreement to fall through, resulting in still more litigation and trips to Court.  After thinking it over, Bob decides to drop the issue.  Attorney fee spent on this issue:  .2 hour x $250 = $50.  One month later the divorce is final.

Option 2:  Lawyer B charges $175 per hour.  He tells Bob that Mary's behavior is outrageous, sets a bad moral example for the children, and the Judge will disapprove.  He does not warn Bob about potential consequences.  Lawyer B files a motion.  At the hearing, Mary is embarrassed to have her moral behavior talked about in a courtroom full of spectators.  The Judge prohibits her from having her boyfriend in the house overnight with the children present.  (Bob's attorney fee:  4 hours x $175 = $700.) After the hearing Mary is angry.  She felt she was bending over backward to get along with Bob and gave him too many concessions in the tentative settlement agreement.  She refuses to settle on the old terms.  An 6 hour mediation fails to result in agreement.  (Bob's attorney fee 6 hours x $175 = $1050 and mediator's fee $600)  A settlement conference at Court also fails.  (For Bob, another 3 hours x $175 = $525).  Bob's attorney spends 5 hours preparing for trial (5 x $175 = $875).  Mary finally settles for the original tentative settlement terms (and no prohibition on her boyfriend spending the night) after 2 hours of negotiation on the first trial date.  (2 hours x $175 = $350)  Attorney and mediator fees attributable to this issue:  $4070.  The divorce is final 7 months after the telephone call.

(If you think this example is over-stated and unrealistic, you must not be an experienced family law attorney.  I invite you to go downtown to the Courthouse, 180 Ottawa Ave NW, Grand Rapids, MI 49503, on a Friday morning, to watch motion hearings on the 4th, 6th, 9th or 10th floors (half the Judges have motions on any given Friday morning starting at 8:30 a.m.)  Just look for the courtrooms with a lot of people packed into the courtroom or waiting in the hallways.  Pay attention to what people are arguing about when they get in front of the Judge or Referee.  Watch how many lawyers are sitting around waiting for their cases to be called.  Multiply the number of lawyers waiting x the average wait x an average rate of $200 per hour.  Count how many of their clients leave the courtroom with a smile on their face or how many look upset.  Note how unusual it is that anyone, including the "winners", leave happy.)

The Importance of Retainer Agreements

Michigan lawyers are not required to have written retainer agreements for family law and divorce cases.  I think this is a big mistake.  Most fee disputes between attorneys and their clients are due to misunderstandings about how attorneys will calculate and bill for their services.  This problem is made worse if the attorney does not provide regular, detailed bills as the case proceeds, and is worse still if the attorney waits until the end of the case to send out a large bill with no advance warning about how much the case is going to cost.

I have a long, detailed retainer agreement.  Its long because it has important information I want you to know.  If you are shopping around for a lawyer, please feel free to print out a copy, ask for a copy of the other lawyers' retainer agreements, and compare. Sample retainer agreement.

Factors Affecting Amount of Attorney Fee

More experienced attorneys tend (but not always) to use less time to accomplish tasks than less experienced attorneys. They will have systems in place to handle the more routine parts of their job in an efficient manner. Additionally, experienced attorneys are often able to provide better advice to their clients concerning settlement, which may reduce court time spent on the case. Although experienced attorneys will generally have a higher hourly rate, the total fees may be substantially less.

The largest factor affecting how large your attorney fee will be is how quickly a settlement is reached in your case. This depends upon the degree to which your spouse will cooperate with you or will fight with you over the terms of divorce. It also depends upon the quality if the advice your spouse receives from his or her own attorney. As between me, you, and your spouse, your spouse has the most control over how much your attorney fee will be. For information on factors affecting how quickly a case will settle, see the essay Negotiation of Settlements. If you have minor children, attorney fees will generally be greater than if you have no minor children. There will be more paperwork, more issues to settle, and more issues that may be hard to settle.

Generally speaking, if you and your spouse have agreed upon the terms of the divorce ahead of time and your spouse will cooperate with you by signing papers, your attorney fee will probably be about $1000 if you have no minor children, or about $1500 if you do have minor children. However, even with cooperation, there may be complications which cause the attorney fee to be greater. Again speaking generally, if you do not have an agreement with your spouse, but we are able to settle the terms of the divorce informally without extra trips to court, your attorney fee will likely be less than $2000.

If your spouse obtains an attorney and contests the case, the amount of fees will vary over a wide range depending upon the issues being litigated and the difficulty in settling the case.

Factors that Tend to Make Divorces Expensive

Very expensive cases tend to have one or more of the following factors present.  The more of the factors, the more expensive the case is likely to be.  Even though a case has one or more of these factors, it is not inevitable that the divorce will be expensive.  Sometimes quick settlement is still possible.

• Spouse abuse cases
• One or both parties are very angry at the other
• One or both parties have serious personal issues (alcoholism, substance abuse, mental health issues)
• Custody and parenting time fights
• Fraud as to income or property
• Complicated property issues (example: some small businesses)
• One or both parties refuse to negotiate in good faith
• One or both parties won't follow their lawyer's advice
• One party does not have a lawyer (and therefore does not know a good offer when he or she sees it, forcing unnecessary hearings)
• One party intentionally runs up attorney expense to punish the other party
• An attorney intentionally or negligently runs up the attorney expense
• A party will not follow court orders, requiring enforcement proceedings

Factors that Tend to Make Divorces Inexpensive

Inexpensive divorces tend to have one or more of these factors present.  However, there may be other issues (see above) that drive up the cost.

• No children (which means fewer things to argue about and less paperwork)
• Already separated for a period of time (probably worked out most terms of divorce informally)
• Both parties want to be divorced
• Both parties want to avoid a fight
• Both parties want to hold down attorney expense
• Both parties just want what is fair
• Both attorneys place client interests ahead of their own financial interests

The Range of Attorney Fees in Various Cases

On review of my last 167 completed divorce cases as of October 1, 2002, attorney fees (adjusted upward to reflect increases in my hourly rate to $200 per hour) ranged from a low of $300 to a high of $36,000. The $300 fee was a case in which I represented the Defendant and we settled quickly. The $36,000 case was a bitter custody dispute with valuation issues for a small business and problems with hiding of assets.

The median fee charged for all cases was $2260. (Median means that half of the cases had lower charges, and half the cases had higher charges. This is an average charge). For cases without minor children the median fee was $1350; for cases with minor children, the median fee was $2900.

The following chart shows the distribution of fees charged in the 167 cases analyzed::

Costs and Expenses

In addition to attorney fees, you will have court costs and may have other expenses if you are the Plaintiff, and you may have court costs and other expenses if you are the Defendant.

The Plaintiff will typically incur as costs a Filing Fee ($150) and at least one Motion Fee ($20). If there is a minor child or children, there will be a $80 Judgment or "Domestic Relations" Fee. There may be other court costs depending upon the circumstances. In addition, you may incur other expenses in your divorce case which are not court costs. The most frequently encountered additional expenses are for appraisals of real estate, pension benefits, or a family business, or the fees charged by mediators or arbitrators.

Tips for Holding Down Attorney Fees

Prepare for the divorce by gathering documents which may be required. See the Document Checklist. If you already have a document, the attorney will not need to work to get the document using legal procedures.

After the case is started, if you have information for me but do not need any advice, it is usually less expensive to mail or e-mail the information to me instead of calling me. However, if you need some feedback from me, call instead. If you are calling for advice, have some notes to help you explain the problem and stay focused on the reason for the call so that the time of the call will be limited.

If I request that you take some action (i.e., get me some information; review legal document and call me to discuss, etc.), please follow up promptly. If I do not hear from you, I will need to follow up with telephone calls and letters, all of which increase the time spent and your attorney fee.

If you are exploring reconciliation with your spouse, please ask me to put your case “on hold”. If you do not, I may take steps in the meantime to push the case along, which would be wasted effort if your reconciliation is successful.

Follow my advice. One of my goals as attorney for my clients is to get the client a fair settlement at the least possible cost in attorney fees. You will need to balance what you want in settlement against the cost and likelihood of success. If I think you are asking for something that you will not get at Court, I will try to alert you to the fact that you may be about to incur attorney fees in a losing battle. To the extent that you do not follow my advice, you are wasting money on the time spent getting the advice, and you may lead yourself into a more complicated case.

Treat your spouse fairly. Unfair tactics invite retaliation. Retaliation will increase the complexity of the case, make settlement more difficult, and may cause expensive trips to Court.

Try to settle at least minor issues directly with your spouse. Especially on issues concerning parenting time with the children, try to be flexible. It is possible to spend large amounts of attorney fees arguing over things like pick up times. Having the Judge decide these issues for you requires at least one expensive trip to Court, and sometimes many trips to Court. Try to compromise on the division of personal property. It does not make sense to spend attorney fees arguing over who gets the toaster. Saving just one phone call to the attorney to complain that your spouse will not give you the toaster will allow you to buy a new toaster.

If you do settle issues, let me know the agreement so that I can stop working on that issue, and if necessary put the agreement into a court order.

Can I Get My Spouse to Pay My Attorney Fees?

Certainly -- if your spouse agrees. Unfortunately, it is the rare spouse in the divorce who wants to pay the other side's attorney fees. The Court rules provide that the Court may award attorney fees and expenses if one party is unable to bear the expense of litigation and the other party has the ability to pay. Unfortunately, Kent County Judges are reluctant to order attorney fees and when they do the attorney fees awarded are often much less than the actual attorney fees incurred. Generally, if both parties are employed, there will be no attorney fee award. Additionally, most divorce cases are settled, so the Judge is not actually the one deciding the terms of the divorce. It is very hard to get the other side to agree to attorney fees in a settlement; requests for attorney fees always seem to be bargained away for something else. Indeed, simply asking for attorney fees may provoke a fight over other issues, increasing the ultimate cost of the case.

A partial award of attorney fees is more likely if there is some bad behavior by your spouse. For example, the Court may award attorney fees incurred because your spouse refuses to cooperate in the discovery process. If your spouse hides assets, the Court may award the extra attorney fees incurred trying to locate the asset. If a Judge thinks that a trial was unnecessary and caused by one party as a form of harassment of another, the Judge may be more inclined to award attorney fees.

Home   Planning for Divorce   Domestic Violence  Divorce Procedures   Defending Divorce   Custody and Parenting Time   Child Support   Alimony   Property Division   Going to Court   Negotiation   Mediation  Arbitration   Annulment   Separate Maintenance   Paternity   Forms   About Michael Idema

Michael Idema

Divorce Lawyer

6410-A Alpine Ave NW

Comstock Park, MI 49321

(Between 7 & 8 Mile Roads)

mike@michaelidema.com

(616) 647-2200

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This web site provides information for general knowledge only, and is not a substitute for advice from a lawyer.  For advice about what to do in your specific case please call for a free initial consultation.