The Many Costs of Divorce (Part 1)

This article is the first of several which will address the many costs of a divorce. The first cost to come to mind for most people is probably legal fees. Legal fees can add up quickly and are often problematic for many litigants who may already be emotionally distraught from their own circumstances.

Fees vary from attorney to attorney, and from firm to firm. When hiring an attorney to represent you in a divorce, the following fee issues should be addressed and confirmed:

1. The attorney’s hourly rate;
2. Whether other members of the firm may be working on the case; and if so, their respective rates;
3. Whether a retainer is required;
4. The amount of the retainer required;
5. Whether a minimum on-going retainer is required at all times;
6. As realistic as possible range of legal fees which may be incurred;
7. The office’s policy on incurring other costs, other than time billed for legal work; and
8. How often an itemized invoice is provided, documenting the legal work done on your behalf.

It is also important to be aware of Supreme Judicial Court Rules Rule 3:07 Massachusetts Rules of Professional Conduct—Rule 1.5(d) Fees, which prohibits an attorney from entering in to a fee arrangement in a domestic relations matter where the payment or the amount of the fee is contingent upon the securing of a divorce or the amount of alimony or support or property settlement.

Courts do have the discretion to award attorneys fees relating to a divorce. Attorney’s fees may be requested at any time to allow the party to litigate or defend the action. The party must demonstrate that they intend in good faith to defend or prosecute the action. The court has the discretion to allow attorney’s fees in accordance with M.G.L.ch 208, § 38 under the following circumstances:

1. To enforce court orders and judgments;
2. Where legal fees and costs are incurred as a result of misrepresentations or the concealment of assets by the other party;
3. For defending a baseless claim;
4. Where one party is found to be in a superior financial position to the other; and
5. For obstructionist conduct which prolonged the proceedings and caused the other party to incur additional legal fees.

Any time attorney’s fees are requested, the most important documents, and only means to determine whether funds are available to satisfy the request, are the parties’ financial statements. Rule 401 of the Supplemental Probate Court rules provides that upon request, and on ten days notice, the other party must furnish a signed, current financial statement to the court with a copy to the requesting party.

Should you wish to discuss any aspect of this article concerning legal fees anticipated in a domestic relations matter, which include not only divorce, but also children born out of wedlock, modification, custody, child support and contempts, please give me a call.

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