In this episode, your host and guide, Attorney Leigh Sellers, discusses another question many newcomers to Splitsville have, “How Much Will This Cost Me?”
Key insights from the episode:
1:27 – The factors that go into the cost of a family law case, including complications, the number of issues involved, and the length of time that it takes to handle the case.
4:50 – How an aggressive approach can increase your bill
6:23 – The Touchstone Family Law approach to efficiently resolving cases
10:05 – Tips to stay within your budget, including: provide your attorney with timely, relevant, and organized information, make copies of your original documents for the attorney instead of giving them to the attorney to make copies, respond to requests for information from your attorney in a timely manner.
11:35 – Alternate billing methods
13:00 How court requirements and deadlines increase costs
15:20 – “It just doesn’t make sense to spend $20,000 to fight for $30,000.” How doing a cost/benefit analysis can save you some serious cash in the long run.
16:45 – Often, attorneys are the only ones who really win when a case goes to trial. Settling a dispute is always going to be the best way of controlling costs.
23:08 – Can you make your spouse pay for the attorneys’ fees?
The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team at http://www.TouchstoneFamilyLaw.com[spp-transcript]
Hello there. Going through a divorce? Considering one? Sorry to hear that, but here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place. A new world really, with its own rules, its own expectations and in many ways, its own language. But don’t worry, you have a knowledgeable guide along the way, a family law attorney with three decades of experience under her belt.
And now, here she is. Your host and guide, Leigh Sellers.
Hi everyone, and thanks for tuning into another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. And, in this episode, I’ll be answering another question that many newcomers to Splitsville have, ” How much is this going to cost me?” So let’s dive in.
How much is this going to cost me? That is inevitably a question I hear in every consultation, whether it’s at the beginning, the middle, or the end, that is a question that I will hear every time. And it’s an important question. And of course, like so many of the answers that I give, the answer for this particular question is it depends, and it really does.
There’s a lot of factors that go into the cost of what any kind of litigation or outside litigation, whether it’s mediation or collaborative divorce or arbitration or a court case or a separation agreement. No matter how you approach it, the cost is going to depend on a lot of things. First and foremost is the cost of the attorney. Attorneys charge by the hour most of the time. That’s the most traditionally accepted method of paying an attorney, is they have a billable rate per hour, and they charge for sections of an hour, six minutes usually being the smallest section of time that they bill for, and they have a rate, so it’s a multiplier.
Every attorney’s rate is determined by the area that they practice in, so it’s what the market will bear, how experienced or credentialed they are, and how long they’ve been practicing, if they’ve had any awards, if they’ve published things. But there’s a lot of things that go into determining how their hourly rate is calculated. That’s going to be the most traditional measure.
So obviously, the more expensive an attorney you hire, the more expense you’re going to have overall. But the complexity of your case is a huge driver. So do you have children? How many children do you have? Is custody contested? Or is this not something that you and your spouse are arguing about? How much money does your estate involve? Is it a complicated estate? I describe a complicated estate as people owning multiple businesses, maybe having a large amount of rental property, a lot of real estate holdings, maybe trusts, complicated investments, things that are not easily divided between spouses.
Is there going to be an argument about support? Is this a situation where one party feels very entitled to alimony to spousal support and the other party feels equally entitled to say no to such a demand? Is child support going to be a complicated situation? Do we have a self-employed person? Do we have a person that runs their own business? Something that makes it harder to define what their income is, which is an important part of child support. So the complication and number of issues that you have is certainly one of the deciding factors.
Then there is the length of time that it takes to do your case, because again, if you’re paying in the traditional method of hourly, the longer it takes to resolve the issues, the more your expense over the life of the case is going to be. So if this is litigation, for example, every jurisdiction has a different pace, depending on how large the county is, how many judges they have available, how many terms of court. So sometimes one of the things driving your case is simply speed. You just can’t get into court to have a hearing, and if you have one of those cases where a hearing is necessary to resolve each and every issue along the way, then the more crowded of a jurisdiction you’re in, the longer you’re looking to have your case resolved.
As well as just literally that question, is this a situation where you’re one of this people that, so to speak, is going to go to the mattress? You’re going to fight about everything? This is going to be a knock down, drag out for the simplest of issues, just over, and over, and over again? I can tell you right there, the sky is the limit. You could pay more than you possibly possess if one or both of you have decided that you are just going to take a battering ram and beat this case to death.
So you have control over the expense. You may not feel that you do when an attorney is quoting a retainer, but our question isn’t how much do you need to set aside to handle your case up front, our question is are you going to be able to stay within your budget? And that’s really what it is. We as attorneys can have a pretty good feel about how a case should be resolved based on the complexity, based on the factors, based on what we see it as a legal problem. And we can give you a pretty good idea of how much we think your particular case should run you, but we cannot control the conduct of you, your spouse, or your spouses attorney. Therefore, we can’t guarantee what the cost is going to be. We just know what we think it should be if reasonable people approach it in a reasonable manner, and are solution oriented.
At my firm, and me personally, I feel that the most important thing that we can do for our clients is help them get resolution as efficiently as possible. That means that we want to spend the amount of time that is warranted, that is needed, and it’s different for every case, that we should fight for the most important things, and not sweat the little stuff, and that we should guide our clients to set their expectations reasonably.
What that means is, put aside the emotion to some extent, and really think about what the law is and what the law allows, and what the factors are that a court can consider, a judge could consider, that apply to your situation, and understanding what might reasonably happen to you if you did have to go to court and did have to have a judge make this decision for you. Try to make a decision between the two of you without a judge that’s somewhat in those parameters that will meet your needs. And don’t make a judge have to make the decision for you if you know generally where it could fall.
So you have a lot of control by how you choose to approach the case. And while you may not have any control over your spouse, you do have influence because there is a dynamic that gets created in a lot of cases, and there are always exceptions and so I’m not even going to speak to the exceptions, but you can, by how you approach your spouse, often expect to be treated the same way in return. So if you are results oriented toward your spouse, it can often make your spouse think more about results.
What I mean by results is resolution. If you’re focused on resolving the situation to the best of your ability, then you’re not really thinking about just beating somebody up, just fighting for the sake of fighting, just making their life difficult, holding them accountable for every wrong that you feel that you’ve endured through the marriage. You’re not using the legal process to try to accomplish something that it’s not really intended to do. You’re really just focused on using therapy or something other means to deal with a lot of the emotional fallout and the anger, the hurt, the disappointment of a failed marriage. But you’re just using the legal process to help resolve the legal problems. And if you handle it that way, oftentimes, the other spouse will respond in kind.
But if my client is determined just to try to extract some revenge or take some blood, then they’re going to have to expect that the same thing is going to happen. Because when somebody is backed in a corner and made to be defensive, they’re going to come out fighting, and their best defense is going to be to throw everything back at you that you’ve been throwing at them. So if you want to go through a litany of how you’ve been wronged, I hope you’re prepared to read the list coming back at you of everything that they think that you did wrong to them.
And the thing is, it’s not really going to advance your legal case, in most respects. Now, an attorney will be able to tell you, I can tell you if there is an actual legal consequence to bad behavior. So if you think your spouse has done something terrible, we’re going to talk about it because if it has any bearing on the law, then it is going to be relevant to your case and it’s going to be discussed. But if it’s not, then I’m going to tell you that as well, and it’s really important that you have that conversation.
But there are a lot of things that control the cost that I would advise people to really think about. Number one, how organized are you? How much time do you spend on getting the information that your attorney requests to then timely, and in a very efficient process, do you bring copies of your documents that an attorney requests, and they’re always going to request documents, do you bring copies to the office already made in an organized fashion, tabbed, some people bring them to me on thumb drives? Or are you the client that brings in shoe boxes of just everything that they grabbed off of the desk, you know unopened mail, that they haven’t even attempted to take any time and see if it’s responsive to what I asked for, they just basically give me boxes and boxes of material to go through?
Well, there’s a big difference in the amount of time that it takes me to go through boxes of unopened mail to see whether or not there’s something in there that is what I need, and somebody who literally gets me what I asked for in an organized fashion. Do you drop the originals off that requires us to make copies and return those to you, or you go ahead and make the copies yourself?
So just sometimes how you handle simple information is going to affect the cost. Do I have to call you six times to ask you for something? Or do you respond timely and give it to me after the first request? So think about what you’re doing to drive up the cost.
Another thing to do is talk to the attorney about are there alternate billing methods. Some attorneys in town do have value billing, which is an interesting concept, where it’s sort of a hybrid of hourly plus sections, like you’ll pay a flat fee to this point of a case, and then if it’s not resolved by that point in the case, you’ll pay another flat fee to get you to the next case, and then if it goes to trial, you pay a much larger flat fee. There’s other people that do do some flat fee work. There are some attorneys that do some coaching, they’re not going to make a court appearance for you, but they will answer legal questions for you on the side. There’s some attorneys that offer assistance in filling out forms if it’s simple.
So the bottom line is, the cost is going to depend very much on your case, but every attorney out there can give you an estimate of what is the best way to approach it, and what is the most reasonable way to approach it. Mediation is often much less expensive, and that’s a whole nother episode. Arbitration, collaborative divorce, there are non-litigation methods out there which can be much less expensive than the traditional court filing, because there’s no question that the most expensive way to handle all of the legal issues related to divorce would be to go through court. Litigation is by far the most expensive way.
Part of it is just the hoops that the court makes you jump through, the forms that they make you fill out, because they want the information delivered to them in a certain format. And it’s not necessarily the most logical one. It’s not necessarily the best way to put your evidence in front of the judge, but it is just a standard form that they expect us to fill out, and they’re often very cumbersome and time intensive. There’s also a lot of just deadlines that you have to meet, and they’re arbitrary, and they don’t have anything to do with how complex your case is, and meeting those guidelines and all of those deadlines can be very expensive.
There’s also this wonderful thing about getting a court date, and they give you and 20 other people the same court date, and they bank on the fact that some of those cases will settle and some of those cases will get continued because somebody gets sick or something happens, and they want to make sure they have something to do. So it’s sort of like a gamble. They’ll put 20 cases on at 10:00 A.M. in the morning, and hope that they only have five. Well, guess what? Sometimes there’s 15 or there’s 20. And you just do the math, if each hearing is supposed to take 30 to 45 minutes and you’ve got 20 hearings set in, you’re not going to get that done in the day.
So often, we prepare, and we go to court, and our case doesn’t get reached, it is continued for three months, at which time we have to prepare completely a second time because circumstances have changed, or at the very best, you’ve got to refresh your memory. And you, the client, pay for that both times, and there’s nothing we can do about it. It’s frustrating for clients, and clients will argue with us and say, “But you haven’t done anything,” because we don’t have a hearing and we don’t have a ruling and we don’t have a result. Bottom line is, we are doing everything that we’re supposed to do, everything that the court is arguing that we need to do to have your case ready to hear when they give us their time. And we have zero control on when they choose to give us their time.
So if you are prepared to litigate your case or your spouse is prepared to litigate your case, it is going to be quite expensive. But ultimately, you always have a decision to make. You can always look at what you’re fighting over, and how much it’s costing you, and you can always do a cost-benefit analysis, and your attorney can sit down and help you explain to yourself or to your spouse or to anyone that’ll listen that it just doesn’t make sense to spend $20,000 to fight for $30,000, that it doesn’t make sense to argue about an amount of child support that over the life of the child, you’ll never reclaim the difference between your spouses position and your position with the amount of money you’re spending fighting over it, that the child support will just end before you’ve ever recouped, even if you win your lower number, it will never be offset with what your costs are.
So if your attorneys aren’t doing a cost-benefit analysis with you about each step of the process, you should ask them to because that’s one of the biggest questions that I’m always asking my client is, “Is it worth it to you to spend this much money for the difference between your spouses position and yours?” I’m blunt, and I don’t know that everybody is, but I will flat out tell my clients whether or not I think they can attain a goal, and I’m not going to tell them to keep fighting for something that I think is just unrealistic. That’s my opinion based on my experience, and that doesn’t mean I’m going to be right 100% of the time, but I’m going to tell you.
And any good attorney should tell you whether or not they think that you have a good chance of accomplishing what you want to accomplish in litigation, and you should listen to that advice because they have been there and they have done it, and they are not telling you this as a cop out, they’re not telling you this against your interest. Because I want you to think of it this way, when somebody is giving you a suggestion that you need to settle and you need to resolve it and not go to court, think about the fact that attorneys are paid by the hour in most situations.
As an attorney, I always make more money if people go to court. I always make more money if people go to a trial. I am the only one who wins in a courtroom experience when somebody goes to a final trial and wants to be on trial for three days just to hear what a judge will say about their case. I am the only one that’s going to win because I’m getting paid for that.
So I am a guaranteed winner in a court process, and if I am telling you that I think you need to avoid it and accept a particular settlement offer, you might want to take my advice, because I’m actually advising you against my own self-interest to stay out of court and take a settlement that’s been offered to you, and not take the risk of court. Because settling your dispute with your spouse is always going to be the best way to control the cost of the situation.
So you really want to think about your hand in the entire process, and you want to be focused on the expenses. But you need to also understand where you’re driving up the cost as opposed to where the cost is simply a necessary expense and a reasonable expenditure, and what you should expect. And you need to find out what you can do to lower your cost, as well as what your attorney might be able to do to lower your cost. But it’s an important discussion to have with your attorney. No attorney is going to be able to guarantee you a result, no attorney is going to be able to guarantee you an absolute bottom line of how much something is going to cost, because they’re not the one that gets to make all the decisions. Ultimately, the client makes the decision whether to push forward on something.
So keep in mind that you won’t be able to get those absolutes, and if somebody’s giving you one, it’s probably incorrect, and you just need to accept the fact that there’s going to be an expense associated with divorce and separation, with the legal process, that you do have some control over it, and that you do need to manage your money in respect to your separation or divorce the same way you do any other expense you have in your life.
Sometimes when I’m meeting with a client and they’re really complaining about the cost of their divorce and separation, I’ll ask them if they eloped. And if they say they didn’t elope, I’ll ask them how much they spent with their wedding. And these days, it’s getting pretty crazy how much people are willing to spend for wedding and wedding related activities. Not everybody spends a crazy amount of money on a wedding, but I have had people that have walked in here that have spent up to $75,000 on weddings and honeymoons, and they are absolutely freaking out because their divorce might cost them 10.
So I don’t think you should ever expect to get out of a marriage and all of the legal ties that you have from being married to a spouse for nothing, and you shouldn’t expect to spend less on it than you did on your wedding dress or on your rehearsal dinner, on the band that played at your wedding. It is a process that needs to be done correctly. And one thing that most every attorney can tell you is that not doing it right is going to cost you more money in the long run than it would to just spend the money to do it right the first time.
So there is going to be an expense associated. You do need to sort of accept that. You need to understand it. You need to take some ownership of it. And you need to control it where you can, and realize that you are empowered in that respect. But I would caution you, it’s not like you’re authorizing the attorney to make a decision. When you hire an attorney, you’re hiring them because you want them to guide you, you want them to help you get to the goal that you have, and they’re the one with the law degree, and they’re the one that you are asking to do this.
So in much the same that you’re not going to buy a ticket on an airline and then tell the pilot how to fly, and you’re not going to engage a surgeon to do an operation and then tell them where to cut, you don’t need to expect to hire an attorney and tell them how to practice law. You’re not going to tell them whether they can send this, whether they can file this or not. What you’re doing when you hire them is asking them to do those for you. And when they feel that it is a discretionary act, they are going to absolutely seek your input and your direction, and make sure that you are 100% on board with what you’re doing. And when it is simply something that has to be done because the process has already been started by you, you need to accept that answer that that’s the way it simply has to be done, and it has to be done because the two of you or one of you made a choice to end the marriage.
So it is an expense. There’s not an attorney out there that doesn’t understand it, that doesn’t accept that it is painful, and doesn’t accept the fact that there are 100 places you would rather spend that money than in our office. We are not blind to that reality, and we will help you manage your money the best that you can.
I know at our firm, we are extremely conscious of trying to make sure that you get good value for your work. And just don’t hire an attorney that you don’t trust to manage your money and your case, and you should be fine. But you also know that you’re going to get what you pay for, and if you think you’re going to have free legal services, you’re probably going to get poor legal services.
And one final question, I get asked this quite a bit, and it’s a good question. How do I make my spouse pay or the other side pay for the attorney fees? That can be done sometimes. There are definitely statutory provisions that give the court authorization to require the other party, in certain cases, to pay the fees or pay a fee. It gives them the right to award fees, not necessarily everything that you’ve spent, but they have the authority. And there are some causes of actions or claims that don’t allow a judge to do that.
So if you absolutely can’t recover or seek fees, and one example in North Carolina is the division of property, if you’re just fighting over how to split your property, there’s literally no statutory authority that allows a court to award fees to one side or the other, we’ll tell you if there’s no way.
If there is a claim for getting the other side to pay your fees, we’ll always make it. I will tell you that it does not make sense to make the decision of how your case is going to proceed assuming a court’s going to award you fees, and assuming that they’re going to award you a significant amount of fees, or enough fees to cover what your costs are. You really need to be prepared to pay your own fees, and you will be expected to within the attorney to pay those fees. And if you do get an award from the court, it’s going to be reimbursing you for some portion of what you’ve spent.
But every judge is different, and every factual situation is different. And since they’re really expecting you to “prevail” on a claim, it’s very discretionary, so the judge is really going to have a lot of leeway in deciding whether or not they think that this is a situation where somebody should be forced to pay the fees for the other person bringing the claim. And if they really feel like it was a good faith contest by both parties, that both parties had some good issues and had some good arguments and there was a real legitimate reason to be in front of the court fighting for those things, sometimes they just don’t, they say each party will be responsible for their own fees.
So we’ll always add those claims, and we will try to get the award if possible, but we do not ever encourage you to make your spending decisions on the basis that you think you’re going to get the other side to pay your fees.
So there you have it, another neighborhood of Splitsville explored. There’s still so much to learn here, so I hope you’ll tune into the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources and sound advice, if you know where to look. See you next time.
The insights and presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney/client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.[/spp-transcript]