"How Are Legal Fees Handled In My Divorce Case?”

Today’s consumers are rightfully cost conscious when shopping for lawyers to represent them in their divorce cases.  In this difficult economic environment, in part caused by the pandemic, clients are entitled to know what to expect when it comes to legal fees in a divorce case.  As such, I frequently get asked during initial consultations, “How do legal fees get paid during the divorce case?” That question, as one might expect, is not easily answered, but I outline the following to all of my clients so they have a clear understanding of how the process works as it relates to the general payment of legal fees.

The actual payment of legal fees is usually handled in one of two ways.  First, all legal fees are paid “off the top” of the marital estate.  That means assets of the parties’ martial estate are used to fund and finance the payment of lawyer expenses.  In other words, even if one party’s lawyer incurs more fees than the other lawyer, because the legal fees are being paid out of marital assets (presumably a savings, checking, or investment account), then both litigants are sharing equally in the payment of all legal fees.  That is the more traditional model that is usually applied in cases that are resolved without litigation (through settlement).  Under this model, a party is not ‘penalized’ if they hired a more expensive (or more thorough) lawyer than the other.

The other way legal fees are handled is that at the conclusion of the case, all legal fees are reallocated equitably between the parties through a process referred to as “contribution.” This means that legal fees are “trued up” at the end of the case so that one party does not have greater access to marital assets than the other, for the specific use of legal fees.  For example, if one spouse paid $20,000 to his/her lawyer during the case and the other paid his/her lawyer $40,000, the second spouse would owe the first $10,000 out of his/her separate share of the final settlement.  Thus, this model results in equalizing the legal fees.  Variations of this model also occur such that one party may be ordered to pay a greater share of the legal fees as opposed to just a straight equalization of the fees.