Procedure
HOW MUCH IS IT GOING TO COST ME TO USE AN ATTORNEY?
Competent legal assistance during a family law matter is a given benefit. Competent legal assistance is expensive. The fee you are charged for legal representation will be based upon a number of variable factors, many of which are in your power to control.
As a general rule, the more issues and disputes in your case, the higher the ultimate cost to you. The more cooperation between the parties, the more agreements can be reached without protracted litigation.
Within each dispute, there is a whole range of options available in terms of building your case. Each option has a cost connected to it.
For example, where the spouse not operating the business questions the cash flow available in a self-employed business for the determination of support to be paid to the other spouse, various approaches may be called for, each possessing its own cost and benefit to consider. Documents of the business must be secured. Sometimes, these documents are easily available and can be photocopied by the spouse. Other times, the documents are off premises or have been hidden by the operating spouse. In this case, the court's subpoena power must be used to secure these documents.
Or, a Request For Production of Documents might demand these documents. If the operating spouse complies with the subpoena or Request For Production of Documents, then the documents have been secured with minimal expense. However, if the operating spouse resists compliance, it may be necessary to file a motion to have the Court compel the production of the documents requested. If the subpoena has been ignored, it would be necessary to file an action against the non-compliant spouse for contempt of court. Obviously, there is a big difference in the expense to the litigants if the documents are voluntarily turned over or not. Once the documents are obtained, it may be necessary, depending on the complexity of the business and issues involved to hire an outside forensic accountant to assist the spouse in proving his or her case to the Court. Again, the need to employ outside experts such as a forensic accountant will increase the expense of litigation. The possible need to take depositions of the operating spouse or witnesses will increase the expense of litigation.
Certain issues significantly increase the cost to both spouses. As mentioned, the existence of a self-employed business. Custody issues have the potential to be quite volatile and expensive. It is always helpful to keep in focus the paramount question that is what is in the best interests of the children as opposed to what is in the best interests of the parents. The Court does not care about the parent's best interest, only the children's best interest. Unless there is some real, not imagined harm, to the children if they see both parents on a frequent and continuing basis, a parent's attempt to deprive the other parent of frequent contact with his or her children will only significantly increase the expense of the divorce, and be harmful to the children in the process. The need for restraining orders will require the preparation of lengthy declarations by each side, which often result in responsive declarations and reply declarations by each side, escalating the expense of the divorce process. The more court hearings necessary, the more time the attorney spends in court and the higher the cost of litigation.
Richard Ross Associates tries to keep down the expense of litigation by employing legal assistants to prepare the legal paperwork at a much-reduced hourly rate under the direct supervision of its attorneys. By paying for attorneys only when necessary, the overall cost to the client is reduced. Proper perspective also keeps down the expense of litigation. Making decisions based on calm reason rather than rage or principle will greatly reduce the final cost to you. The attorneys will discuss the potential costs and benefits of each course of action with you before taking the action. This is your case and you are the ultimate decision maker. In order to make the proper decision, you need to be fully advised of your options. Your attorneys at Richard Ross Associates will always try to provide you with the information necessary to make the best decisions possible for you under the circumstances.
We utilize state of the art technology to streamline the preparation of documents and the management of information. Our case management and trial management software reduces the cost of litigation. Since our practice is limited to family law, our expertise and past experience further reduces the ultimate fees that you must pay. We know that family law litigation is something that our clients want to complete as quickly as possible to minimize the financial and emotional cost and to move on with a fresh start in life. We focus on that goal by resisting unnecessary court delays when possible, superb preparation, and client involvement throughout the process. It is truly a team approach.
WHY CAN’T I PAY MY ATTORNEY FEES ON A CONTINGENCY BASIS?
Contingent fee contracts between attorneys and clients that give attorneys a financial interest in furthering divorce are unlawful and violate public policy. The policy against contingent fee contracts is designed to discourage the conduct of an attorney who might, by reason of a separate and individual interest in the value of the parties’ community property, “be tempted to widen the breach between the spouses.” Coons v. Kary (1968) 263 Cal.App.2d 650, 69 Cal.Rptr. 712.
WHAT IS A RETAINER?
A retainer is a deposit that is placed into a client trust account. As the law firm performs work on the case, the client is billed at an hourly rate, payable from the trust account. Essentially, the retainer amounts to payment in advance for work performed by the law firm.
In our case, the client receives a statement each month detailing the work performed by the firm, the amount charged for the work and the balance of the retainer account.
A retainer fee arrangement is unlike a contingency fee, which is based on a percentage of a potential financial award at the conclusion of a case, or a “fixed rate,” or “flat rate,” which assigns a fixed dollar amount to the performance of a particular legal service.
FROM WHAT SOURCE OF PAYMENTS MAY I OBTAIN ATTORNEY FEES?
An award of fees may be made from any type of property.
STATUTE PROVIDES:
"The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income." (Family Code §2032 (c).)
MAY THE COURT ORDER FEES FOR ME THAT IS REASONABLY NECESSARY TO PROSECUTE MY FAMILY CODE PROCEEDINGS?
Answer – YES
STATUTE PROVIDES:
"(a) During the pendency of a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, order any party, except a governmental entity, to pay the amount reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding. From time to time and before entry of judgment, the court may augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto, including after any appeal has been concluded.
(b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
(c) For services rendered or costs incurred after entry of judgment, the court may award the attorney's fees and costs reasonably necessary to maintain or defend any subsequent proceeding, and may augment or modify an award so made, including after an appeal has been concluded.
(d) Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney's fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party.” (Family Code §2030.)
NOTES: The Family Code, effective 1/1/94, replaces the entire Family Law Act. (2) Family Code §2030 continues without substantive change subdivision (a) of the former Civil Code section 4370, which section was repealed effective 1/1/94.
WHAT FACTORS WILL THE COURT CONSIDER IN DETERMINING WHAT IS "JUST AND REASONABLE" UNDER PARTIES' "RELATIVE" CIRCUMSTANCES?
STATUTE PROVIDES:
"(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in [Fam. Code §4320]. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.
(c) The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income.” [subsection (d) omitted] (Family Code §2032.)
WHAT IS THE EFFECT OF BANKRUPTCY ON AN ATTORNEY FEE ORDER?
STATUTE PROVIDES:
"(a) A discharge ... does not discharge an individual debtor from any debt- ...
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record ...." (11 U.S.C. §523 (a)(5).)
