Most lawyers typically ask for a "retainer" when you want them to act for you and ask you to sign a retainer agreement.
The retainer is money you provide to pay the divorce lawyer for the work they do on your file. The money goes into the divorce lawyer's trust account. It cannot be taken by the divorce lawyer until work is done and a bill is sent to you. Only then does the divorce lawyer have a right to put the money into their personal account. The divorce lawyer will stop work on your file until more money is placed in trust once the retainer is used up. Bills should be paid within 30 days of you getting them. The divorce lawyer has the right to charge you interest if they are not paid within this time.
You can always seek to have a divorce lawyer's bill reviewed before a Registrar of the Supreme Court of British Columbia if you feel you have been overcharged. This is called a "taxation."
How I Address Fees
People generally think a lawyer who charges a lot of money must be the best at what they do. There is no question there are many skilled lawyers who believe their fees should be reflective of such expertise. But the problem with this approach is many people living paycheque to paycheque cannot afford to access these lawyers because the price tag is too high.
Nor is it true that “you get what you pay for” when you choose a lawyer. This is so because much of litigation is dependent on factors outside the lawyer’s control. No lawyer, for instance, can control how a judge is going to decide a matter, no matter what they charge. All a lawyer can do is position the client to maximize their chances of success, a skill independent of their hourly rate.
I generally ask clients how much they can realistically afford to pay in a month toward their legal fees when I talk about cost. The amount determines how much work I can do in a month. If the amount is $500 a month, for instance, then I know I can spend roughly two hours of work for them in a month before I have exhausted the retainer.
Most of the time I ask clients to fill out and sign a form allowing me to charge their Visa or Mastercard on each first of the month for whatever amount has been agreed to. This is advantageous to the client for several reasons. I will then always have money in trust for unexpected things. It avoids the uncomfortable situation of you getting a phone call asking for a large sum for work that needs to be done. It allows me to focus on what I should be focusing on: your case.
The other reason is that not all months will be busy. Sometimes the money just accumulates in trust until it is needed. Any extra money that is in trust when the file is concluded is returned to you. I usually ask clients if they wish to pay the balance, or continue on the monthly credit card plan until the account is settled if there is a balance owing when the file is concluded. Most opt for the former.
It is also tactically advantageous for the client to agree to a set amount on a monthly basis. If the client can budget for the payment, then they can likely sustain the litigation longer than the opponent who may have retained a lawyer using a traditional up-front retainer method. The chances the client can outlast the opponent in litigation are thus increased, which also increases the chance of a favourable result.
You can even collect Air Miles for that vacation you will take once you have obtained your divorce by paying your legal fees through your credit card!
There are some exceptions to this rule. I have to charge your card for any out of pocket expenses I incur. These are called "disbursements." They can include the notary fee to secure a mortgage against a house, the cost of a mediator to resolve your file, or the cost of retaining a psychologist to do an assessment of what is in the best interests of your children.
Another exception is if I part ways with a client before their file resolves for whatever reason. I am unable to release your file unless the balance on your account is paid in full, which we would charge from the credit card.
The last exception is trials, which are the most expensive part of divorce litigation. They are also the most labour intensive. I will accordingly review the retainer agreement about 60 days before trial and meet with you to determine how that cost is to be addressed.
Fee estimates for common services in a divorce file
It is best to think of legal fees in terms of hours necessary to do the work. Here are some [very rough] ballpark figures for common things I do. These are estimates. The facts of your case may require more, or less time.
Uncontested divorces: I would need about two hours to draft the paperwork and there is a $200 filing fee to be paid = $1,000 - $1,500 plus tax.
Separation Agreements: I would need to meet with you to understand the issues you want resolved. Letters would have to be sent back and forth to the opposing spouse to negotiate the agreement. There may also be a face-to-face meeting. I would need to prepare a Financial Statement with you to ensure full, fair and frank disclosure had occurred. I would then need to draft the agreement itself and ensure you understand what the agreement means before signing it = 10 hours.
Filing a Notice of Family Claim or Reply/Counterclaim in contested proceedings: I would need to meet with you for an hour to determine the issues. I would then need another hour to two hours to draft the pleadings with you. I would then file and serve the documents. There is also a $200 filing fee = $1,000 - $1,500 plus tax.
Judicial Case Conferences: I would need two to three hours of prep time. I would then attend the JCC. JCC's are set for 1.5 hours. There would also be travel time back and forth from the courthouse. I would also need an hour for post-JCC work, such as preparing any consent order, or providing legal advice on next steps = Five hours.
Interim Applications: Fees depend on the complexity of the application and whether the opposing side cross-applies. I typically need at least two meetings with you to draft the affidavit evidence. I typically do these meetings in three - hour blocks. More than one meeting is typically needed, as there are inevitably documents the client has to obtain to complete the affidavit, before it is sworn. I then need one hour to draft the notice of application, and two more hours to draft the legal argument, depending on how complicated it is. There may be letters back and forth that have to be sent, reviewed, and given to you for instruction. Then there is the hearing. I would have to travel to and from the courthouses. Expect a chambers application to take a full day. Court starts at 9:45 and ends at 4 p.m. Then there may be orders to draft as a result of the hearing = 20 - 25 hours.
Examinations for Discovery: These require a fair bit of prep time because you get one chance to do a discovery and have to make sure you cover all the bases to obtain the admissions you are looking for. I would estimate five hours would be needed. You get five hours for a discovery, all of which should be used. There would also be travel to and from the court reporter's office. There may also be a few letters back and forth = 20-25 hours.
Mediations: This estimate is for my fee only. It doesn't include the mediator. Keep in mind, also, that you do not have to have a lawyer present at a mediation. You can act for yourself and call me when you need legal advice, which is way cheaper. It will require the same amount of work as a JCC, though the time in the mediation would be longer as there is no time limit. I would estimate an eight hour day for the mediation, plus an hour of travel time. There may also be post mediation work to finalise the agreement = 15 - 20 hours.
Trials: Most divorce law cases settle before trial because trials are so expensive. The rule of thumb is to estimate a 10-hour day, per day of trial. There is also going to be prep time. I estimate I would need half the number of days the trial is set for to prepare for it. I would need 2.5 days to prepare for a five-day trial, for instance = 75 hours.
How to avoid a large bill
Clients can also help themselves save money when they retain a divorce lawyer. Here are some tips:
Remember the meter is running all the time: Divorce lawyers only have their time to sell. They will always charge you every time you speak to them, email them, or ask them to do something. Part of a good divorce lawyer's job is to keep you focused on the final goal that was determined at your initial meeting. Always think about the bigger picture. Your wallet will thank you for it. It is not necessarily advantageous to you, for instance, to exhaust your retainer by emailing your divorce lawyer several times a day about the other spouse's access over a weekend if the file is going to be about proving your spouse's income so you can get more child support and spousal support. The divorce lawyer will have to review the email and draft a response. You will be charged for it.
Be clear about what you want to accomplish before you walk through your divorce lawyer's front door: Similar to the above, think about what you really want to do before meeting with a divorce lawyer. You will incur more cost the longer it takes the divorce lawyer to get at the root of your legal problem because you are not clear about it. Most divorce lawyers who see the client for a first time in an initial consult have first had the client fill out an "Initial Client Meeting" sheet. Take the time to fill it out thoroughly because it will save the divorce lawyer time [and your money] asking you for that information, which will be needed to begin a court action. You can check out the "Divorce Law Issues" page on this website for more information on common divorce law issues.
Bring all the relevant documents you can as early as you can: This will save you time and money by ensuring the lawyer does not have to ask you for it later. Each spouse has to exchange a document called a "Financial Statement" in any court action. It requires the spouse to list all their assets, debts and monthly expenses and attach financial records to confirm the numbers.
Here is a [non-exahaustive] list of things to bring to your initial consult with a lawyer to save you time and money:
1. Your original marriage certificate [if you have it];
2. Your T1 General tax returns and Notices of Assessment for the past three years;
3. Your most recent statement of earnings [pay stub] from your employer;
4. Your most recent B.C. Property Assessment for all homes, condos etc. that you own;
5. All court documents, especially court orders, separation agreements and other pleadings;
6. If you own a company, you should bring all corporate T2 income tax returns, balance sheets, and statements of income for the past three years;
7. Your bank card, so the divorce lawyer can print your bank statements from your online account, which may be needed on division of property issues;
8. Your credit card. In addition to providing payment, the divorce lawyer may wish to print your credit card statements from your online account, which will be needed to quantify the family debt on division of property issues; and
9. Your most recent mortgage statement.
Respond to your divorce lawyer's calls and emails promptly: Divorce lawyers typically try to respond to client emails and phone calls within 24 hours, but may be unable to do so at certain times due to court commitments. They are not ignoring you. They are just working on another client's file. But it works both ways. The divorce lawyer often needs instruction from you promptly as some issues are time sensitive. You may miss an important deadline and prevent yourself from obtaining an entitlement that could have been beneficial if you do not respond quickly. I never want to see this happen to a client.
Do what your divorce lawyer asks you to do: A divorce lawyer may give you various "homework" assignments after you meet with one. It could be filling out a questionnaire that gives the divorce lawyer a complete picture of your asset structure. It could be finding documents that are necessary for a court proceeding. It could be reviewing a pile of documents that have come in from the other spouse that the divorce lawyer has asked you to review. A divorce lawyer is trying to save you money by asking you to do these things because they would have to charge you if they did it. Take advantage of this.
Listen to your divorce lawyer's advice: You are the client, so you instruct the divorce lawyer. But a good divorce lawyer is always going to tell you the truth, not what you want to hear all the time. Give serious consideration to the course of action your divorce lawyer advises. Remember you are paying for that advice. You may not like it all the time, but the divorce lawyer is duty-bound to act in your best interests. If they have advised a particular course of action, they have likely done so to avoid an action that could be costly and may be detrimental to your case.
Results matter when it is about your family
You are not objective: You are a human being going through a highly traumatic experience, even if you have the necessary legal knowledge. You will likely be experiencing many emotions. They can [and do] prevent you from making reasonable decisions about yourself, your ex-spouse, or your children. This statement is in no way meant to invalidate your feelings. They are understandable. Know, however, a court will view what you say with suspicion because you are personally invested in the outcome.
It is quite common for clients to say nothing positive about their soon to be ex-spouse when I first meet them, for instance. I know, and judges know, no one is good or bad all the time and both parents must have had some qualities that initially brought them together. The only real victims in divorce cases are children, who did nothing to cause the separation and did not choose to now have two parents who are separating. Above all, you need a lawyer because they are best suited to look at your case in an objective manner. They will be able to help you identify the issues and provide realistic options to assist you in making appropriate decisions a court will order.
How legal fees generally work
You will want to know how much it will cost if you have [hopefully] been convinced you need a lawyer. I always have the same answer when a client asks me how much it is going to cost to get the result they want:I don't know. I don't know because the question assumes I:
I can never know these things, so I can't tell you how much it will cost. No divorce lawyer can. A divorce lawyer who guarantees they can do your case for "X" amount is probably lying to you. A more accurate statement would be: It will cost as much as it is going to take to get you the result you want.
What I can tell you is divorce lawyers charge in six-minute time increments, based on an hourly rate set by the divorce lawyer. All time is rounded up to the nearest six-minute increment. My hourly rate is currently $300 an hour. So I would charge a 0.1, or $30, if I spend six minutes or less reviewing a client's email. I would charge a 0.2, or $60, if I billed eight minutes of time.
A [non-exhaustive] list of the services divorce lawyers typically provide include the below:
I HATE HAVING THE MONEY DISCUSSION WITH CLIENTS. I REALLY DO. BUT IT HAS TO HAPPEN. I ALWAYS ENCOURAGE OPEN COMMUNICATION ABOUT FEES. Pick up the phone and call me about it, or email me. Keeping fees low comes down to knowing what you want before you enter a lawyer's office and maintaining contact with your lawyer. Most lawyers [myself included] understand you are of modest means and will try to make fees work in a way you can afford. Don't be afraid to seek legal advice because you are worried about fees. You would be doing yourself a disservice, for the reasons below.
Why you need a lawyer to represent you in a divorce
Any discussion about fees should begin with why you should have a lawyer act for you. Here are seven reasons why you do yourself a favour hiring a lawyer to help you through a divorce:
Family court is not like a TV show: You cannot watch court TV and expect a real family court to be similar. It isn't. It is not possible for a judge to make a decision dealing with a marriage breakdown in the same time frame as a television show. A person who goes to court expecting to tell their story and get a quick decision will be disappointed. A lawyer will help you avoid this disappointment.
Family court orders are almost always made from written evidence: That evidence is taken in affidavits, which are sworn statements put before the court. You will probably not be able to give oral evidence at a family court appearance, unless it is at trial. A lawyer can help you draft an affidavit taking into account the next two reasons below.
The court is only interested in relevant information: The court will want to hear about a child's needs, the parties' parenting skills and the proposed parenting plan, among other things, if the issue is custody and access. The court will not want to hear about all the ways the opposing spouse wronged you. Many clients I encounter seem to believe bad mouthing the opposing spouse will improve their chances of getting custody. It doesn't. It can actually have the opposite effect. One way this happens is by the judge telling the parties to come back on a new date with relevant information required for the judge to make a decision. This wasted time can be avoided if you have a lawyer.
The court is only interested in admissible information: You may have heard of the hearsay rule, for instance. If you have not, it refers to an out of court statement made by a person who is not present in the courtroom a party is seeking to rely on for its truth. A statement like "my neighbour told me X was hitting the child on Y date" will offend the hearsay rule, for instance.
The information must come directly from the neighbour, not second-hand from you, so the neighbour can be cross-examined by the opposing spouse's lawyer. A self-represented person will likely be disappointed to learn the most crucial piece of information they were planning to rely on was ruled inadmissible because it offended the hearsay rule. Lawyers spend years in law school to avoid offending rules like these. Draw on their experience and training.
You need documents to support what you say: There is no substitute for independent documentation through emails, text messages, transcripts, business records, police reports, medical records, photographs and videos to support what you are saying in an affidavit. A court will give what you say in an affidavit little weight without this supporting documentation. A lawyer will be able to help you find and use these documents to their best effect.
Divorce law involves substantive and procedural law: "Substantive" law refers to what a person's actual rights and obligations are for things like divorce, custody, access, child support etc. "Procedural" law refers to all the rules governing how court cases are run. There are forms to fill out, service deadlines to follow and time limits to think about. The rules are constantly updated and changing. No book or website is going to substitute the years of schooling and experience any divorce lawyer is going to have. You will at best experience delays and at worst risk having your claim dismissed or an order made you will not like if you represent yourself and fail to follow the appropriate procedures. Consider all the time off work and expenses you would have to incur due to wasted court appearances. A lawyer can help you avoid this.