Who will pay the lawyers in your divorce?

Fault

One of the less palatable aspects of divorce is having to pay for lawyers or other professionals. It is even less palatable if you didn’t want the divorce, or if the other person was, in your mind “at fault”. This becomes even more troubling if your ex was “clearly” at fault (and by that I mean that a reasonable person would say that without question, one person caused the divorce – this is usually only where something that society generally would find unquestionably abhorrent, like abusing your child).

However, with most divorces, fault is not that clear. The husband may believe the wife is at fault because she had an affair, but the wife feels the husband is at fault because he did not meet her emotional needs. There is no criminal sanction for adultery, or for not communicating with your spouse. As clichéd as it seems, these circumstances are very common. Someone has an affair because they feel unloved by their partner. The person who had the affair feels justified by the cold response he or she was getting from their partner. The other person feels victimized by the affair. The affair is more easily identifiable as “wrong”. The affair becomes a direct act (as opposed to the passive act of not paying attention).

Joe laments, “If it wasn’t for her affair, we wouldn’t be getting divorced! So I want her to pay all of the legal costs!” But Mary says, “I never even wanted a divorce. I still don’t! I just wanted your attention!” This is typical of most cases where the spouses have relatively the same access to financial resources; they each pay for their own legal fees. Why is that?

Reasons you would pay your spouse’s legal costs

Practically there are two reasons why a person would pay the legal costs of their spouse to allow that spouse to divorce them:

The person is Court ordered to do so
The person agrees to do so.

With so many divorces being resolved and finalized without Court intervention, that basically leaves one reason; the person agrees to do it. Assuming again that access to money is relatively the same for both, what would motivate one person to pay for the legal costs of his/her spouse?

- Guilt

- Wanting to get it over with

- Using costs as a negotiation tactic

When spouses have unequal access to money, you will often find one spouse assisting the other with their legal fees. This makes practical sense, to the Courts (if they are using that system) or to all involved in Collaboration or Mediation. However, that situation is rather rare in these days. This typically occurs in a situation where one spouse was primarily the homemaker and the other spouse was primarily the breadwinner.

You can see how, if you were the breadwinner spouse and in litigation, you might find it distasteful to have to finance your spouse’s lawyer to challenge you in the Court system. Would you finance the Crown Prosecutor if they were trying to convict you of a criminal offense? The adversarial nature of the Court system makes this concept hard to accept.

However, in Collaboration and Mediation, where all involved share a common goal of problem solving in a way that meets both person’s needs, paying for your spouse’s lawyer is literally paying another member of your team. If your spouse doesn’t have a lawyer because he/she does not have money to pay a lawyer, you won’t get done.

Where does the money come for lawyers? How will legal fees be allocated?

Very few people can afford to pay for legal fees out of their normal monthly income. Many people are barely meeting their budgets without the added expense of lawyers fees.

Some creative ways of paying legal fees:

Sell an asset
Use an existing Line of Credit that has room on it
Add to your mortgage to borrow money to pay legal fees
Use other credit
Borrow from family/friends

Allocating the fees in an adversarial divorce almost always involves some notion of blame. The participants might be considering blame as it relates to cause of the marriage. In Canada, we have “no fault” divorce and generally, costs are not given by Courts due to reasons the marriage broke down. However, Courts will assess costs where they make a determination that one person acted unreasonably in the course of the separation, or one person was not willing to reasonably settle matters and maintained unreasonable positions in relation to the matters to be resolved.

In a properly done Collaboration or Mediation, the participants will not have expressed positions and thus there can be no determination of unreasonable positions. The legal and professional fees in Collaboration or Mediation should be viewed expenses that are necessary to get done.

Budgeting for professional fees
You may need to budget for your legal fees. Would you go to a car dealership and expect to buy a car with no money down and no legal promise of payment?

This is exactly how you need to think of your professional fees in a divorce. Many people want to get divorced but have not thought of how they will pay the professionals. You may need to wait to enter into your negotiations and hire a lawyer until you have had enough time to plan for and save up the professional fees.

When you are budgeting for legal fees, consider the following:

What is your lawyer’s hourly rate?
What is their required retainer? (cash advance on fees).
Review your lawyer’s Retainer Agreement and decide if this is the right lawyer for you.
How much conflict is there between you and your spouse?
How many of the issues have you and your spouse already solved? How many issues still need to be resolved and what is the complexity of those issues?
What process will you be using? (i.e.) Court, Collaboration, Mediation
How many other professionals will you have to pay? (Child Specialist, Divorce Coach, Financial Specialist)
How much time will it take to reach agreements?

If at all possible, have the money set aside and earmarked for your professionals. Sometimes effective and efficient negotiations can be stalled by failure to pay the professionals.

A final word

You are entitled to know how your lawyer (or other professional) charges fees before you incur them. Most lawyers will have you sign a Retainer Agreement which clearly sets out how they charge and what they charge for. Review that Agreement carefully. When you sign it, you are agreeing to pay your lawyer’s fees as set out in the Agreement.

You are also entitled to regular, detailed Statements of Account, specifying exactly what you are being charged for.

Ask questions about anything you don’t understand.

If you disagree about a particular item on the Statement of Account, ask about it as soon as you notice the item.

If you do not get a satisfactory answer about your fees or how you have been charged, in most jurisdictions you can “tax” the lawyer’s account. This means that an official will review the account, your retainer agreement and possibly your file to determine if the charges are reasonable. Your lawyer or Court House will have specific details about how that works in your area. The process can vary in each jurisdiction.

Marilyn Herrmann is a Mediator and Collaborative Lawyer who is a partner at Niblock and Company LLP in Medicine Hat, Alberta. She has a self-declared bias against family law matters being resolved in the Court system, and believes that conflict does irreparable harm to families. Marilyn is interested in any method that can help divorcing parents re-structure their families in a respectful, amicable way. Feel free to share your comments and ideas with Marilyn at mherrmann@niblock.ca