Attorney’s fees in a family law action are often very expensive and can play a key role in the resolution of issues because in a cost-benefit analysis, parties may decide to settle on an issue whether to litigate it because the cost of litigation may exceed the value of the disputed item. The court can award temporary fees during the proceedings to put the parties on relatively equal footing to be able to maintain or defend their action. In addition to the court having the ability to award temporary fees during the proceedings, the court may also award fees as a part of the final judgment. A fee award is based on one party having the need for fees and the other party having the ability to pay. When your matter is considered at the conclusion of the case, fees are one of the final issues the court will consider because the court will look at each party’s entire financial circumstances after equitable distribution, alimony, and child support.
In family law, fees are not typically awarded based on who prevails on the majority of the issues, unless there is a prevailing party attorney fee provision in an agreement related to those proceedings. Instead, the court is looking at need and ability to pay. However, the court can consider the parties’ actions during the proceedings and reduce an award to the party in need of payment of their fees, if that party has engaged in needless or vexatious litigation or increased the cost of that litigation by their bad acts. In some instances, although not common, the court will even order the party in the lesser financial position to reimburse the other party based on inequitable conduct.
In hiring an attorney, especially if you are the spouse who is in need of fees, you will need an understanding as to whether the attorney requires you to pay the fees upfront and take full responsibility for them or whether that attorney will attempt to pursue fees during the proceeding to cover their services. Most attorneys, to my knowledge, including myself, require trust deposits or retainers to begin working on your case. Some attorneys charge flat fees to represent you during a divorce, but to my knowledge, most attorneys, including myself, work on an hourly basis and require the trust deposits or retainers to be replenished regularly. Some attorneys charge a non-refundable retainer, meaning that even if they do not perform the services that would result in the payment of this fee, they are able to keep the non-refundable portion of the retainer. This is not something I do. If I perform the services, then I bill for those services. If I have not performed the services, then at the conclusion of my representation, I refund any unused portion of the trust deposit you have made to me.