Divorce and Family Lawyers Fees and Costs
An uncontested divorce can cost anything between R800 and R20 000. The cost mostly depends on the complexity of the divorce settlement agreement and the complexity surrounding the care and contact of any minor children.
In a contested divorce, the costs are variable, time based and heavily dependent on the conduct of the parties. It can cost hundreds of thousands of rands in fees and disbursements. Often, a year or two after serving the summons, the attorneys and advocates on both sides will start to talk settlement. As the trial date approaches, the intensity of the settlement negotiations increases. In 90% of all divorce cases, a settlement agreement is usually reached before or on the day of trial. In a number of cases, it is reached a few days or hours before the trial, or even during. Often, much time and money is wasted on a trial that didn’t occur, and that, in any case, was unlikely to occur, although it is sometimes necessary to spend time and money to uncover and examine the complexities of a case.
In contested divorce proceedings, the attorneys may engage the services of various experts, who will be questioned in an open court under oath. Expert witnesses often come at huge cost and can include:
- forensic accountants, to examine the couple’s assets;
- industrial psychologists, to determine a spouse’s employability for maintenance purposes;
- actuaries, to determine the quantum and duration of maintenance contributions or child support;
- private investigators, to gather information and dig up damaging evidence; and
- child-care experts, to assess who the children should live with.
If the parties can’t pay these experts’ fees up front, their case will, of necessity, have to be presented without experts and, accordingly, less accurately.
If your divorce is uncontested, your attorney will most likely charge a fixed fee for the work done. Virtually all family law attorneys will ask you to pay a retainer or deposit when you employ them to take your case. A retainer will be the first payment towards the attorney’s fees. The amount of the retainer will depend on the attorney’s experience and hourly rate, and whether he/she thinks you might be able to collect a contribution towards your legal expenses from your spouse in an application in terms of Rule 43/58.
When a divorce is contested, one anticipates litigation and an attorney will expect you to pay for a significant number of hours because most family law attorneys charge by the hour. Family law attorneys in a contested divorce may ask anything from R500 to R3 000 per hour depending on the experience they have. The retainer is paid into the attorney’s trust account and he/she withdraws it as the fees are earned. In other words, attorneys pay themselves with money from their trust account. You as the client are supposed to get a monthly invoice itemising the time the attorney has spent on your case, listing expenses that have been incurred on your behalf, and giving full details of fees debited, how much was spent and how much of the retainer is left in the trust account. As the case progresses, the attorney will probably ask for more upfront payments.
Attorneys are subject to very strict ethical rules from their respective law societies who control how they must deal with their trust monies. You are always entitled to know exactly how much of your money is available to pay fees and disbursements. The Law Society Rules provide that as the client of an attorney, you have the right:
- to professional, honest and unbiased advice at all times;
- to be treated with professional courtesy, respect and fairness, regardless of your race, nationality, age, gender, sexual orientation or disability;
- to privacy and attorney-client confidentiality;
- to agree to the type of service you can expect and receive;
- to clear explanations in terms you understand;
- to set out from the start of the consultation what you are hoping to achieve, and aim to make sure that your expectations are realistic;
- to know who will be handling your matter;
- to be advised on the likely success of your case;
- to be assured that no unnecessary work will be done that could lead to unnecessary expenses;
- to an explanation of the cost implications and how the costs are likely to be calculated;
- to be kept informed of costs, so that you can work out if a particular course of action is worth following financially;
- to be kept updated on developments and progress as work on your case proceeds;
- to responses to your letters and telephone calls within a reasonable time;
- to a clear bill that shows the work done and the amounts charged;
- to complain about your attorney if you believe he/she is acting unethically or in an unprofessional manner;
- to have your attorney’s account assessed and taxed if you are of the view that it is too high; and
- to cancel your mandate to your attorney at any stage, subject to certain conditions, and consult another attorney.
As the client of an attorney, you have the responsibility:
- to treat your attorney with respect and courtesy;
- to give your attorney correct and complete information, and to disclose all the relevant facts to assist your attorney to give you the appropriate advice;
- to give your attorney clear instructions;
- to enquire about the cost implications and how the costs will be calculated;
- to pay a deposit if requested to do so;
- to respond timeously to all requests for information from your attorney;
- to not direct unnecessary enquiries to your attorney as your attorney may charge consultation fees for these enquiries, and this may increase costs unnecessarily;
- to settle bills from your attorney timeously; and
- to use the legal system, including the courts, appropriately and not abuse it.
Your attorney should give you a fee agreement before you pay the first retainer. The agreement will spell out the terms of your relationship and cover, among other things, the following issues:
Hourly rate
The agreement should state the attorney’s hourly rate and the fees of anyone else who might also work on your case. You may for example be asked to pay for the time of a candidate attorney, associate or paralegal who works for the attorney, or an advocate briefed by the attorney. The hourly rate of the candidate attorney, associate or paralegal in the firm should be significantly lower than what your attorney is charging. Some attorneys may charge a higher hourly rate for time spent in court as opposed to time spent in consultation.
Expenses
In addition to the hourly charges levied by your attorney, you may also be charged for expenses such as copying, postage, emails, telephone calls or faxes. Therefore make sure that those charges are captured in the agreement. You might want to ask for a clause that says the attorney will check with you before incurring expensive charges, like what the hourly rate will be of an advocate that the attorney will employ and when payment of the advocate’s account must be made. The fees of an advocate briefed by the attorney may be significantly more than your attorney’s hourly rate. Advocates contract with attorneys and therefore the attorneys will be liable to pay the advocates’ fee within a prescribed time period. Usually attorneys will ask for a further retainer before they employ the services of an advocate or demand immediate payment once the advocate delivers his/her invoice.
Services of experts
The agreement may require you to pay for the fees of other professionals hired to work on your case, such as child-care experts, social workers or psychologists, industrial psychologists, forensic auditors, actuaries or real-estate appraisers. There may be a clause in the agreement that allows the attorney to hire an expert without your input, therefore you might want to ask for a limiting clause stating that when an expert charges more than a certain amount, you have to agree to it in advance.
Refunds
Do not sign a fee agreement that states that your retainer is non-refundable. If there is money in the trust account when your case is finalised, you must be refunded.
Termination of the agreement
The agreement should state that you can terminate the attorney’s services at any stage, whenever you want to, and that the attorney can also terminate the attorney-client relationship, but that such a termination in no way will affect you negatively.
Retention
Your attorney will have retention on your file for so long as his/her account has not been paid. Therefore, if you decide to change attorneys, be aware that the attorney will be within his/her rights to hold on to your file until you make full payment.