How much is this going to cost me: why attorney fees for divorce and family law cases are so hard to predict: Part I

I am working with a client right now to help her file a motion to modify her child and spousal support (alimony). It’s a fairly straightforward motion, but there are several moving parts that complicate things a bit. The incomes of both parties have changed, both parties have moved out of California, and there may be an issue of under- or over-payment of support because both the former agreement and the specific circumstances are unclear (the agreement is contradictory in terms in a couple places, and some payments received by one party were for one thing – severance – but called something else – bonus). Oh, and the other party’s income is from a side business of sorts that the other party claims doesn’t exist (or at least doesn’t lead to any income, naturally!).

This client is also trying very hard to save money because funds are tight. So, with this situation, there are a couple options that I have, as an attorney, in proceeding. I could spend 10 hours on this motion to modify, outlining what’s happened in great detail in the 2 years since the agreement. I could document and chart every payment over the years, and compare it to pay stubs and the agreement, showing the payments were or were not appropriate. I could file a lengthy Points and Authorities about the various legal arguments on each issue. I could send discovery over to the other party to discern the situation with the side business. All of this would be proper and appropriate, but at the same time would also cost this client several thousand dollars to complete. Some attorneys will only handle cases in this way.

But the client doesn’t want to spend thousands of dollars to file a modification of a support order – she wants to modify the support order because she is struggling financially. Usually it’s sufficient in a motion such as this one to explain the situation in the plainest terms and request the modification. As an attorney, of course I want to pull all of the stops and file the strongest motion I possibly can. But family law is more than that. Family law issues must take into consideration the time and fees it takes to prepare documents. It has to take into consideration the reaction by the other side, and subsequent breaking down (or not) of the relationship between the two parties – who are often parents…parents who have to parent together for a lifetime. There is often a very strong interest in maintaining civil relationships in family law cases, and the importance of that cannot be ignored. Pulling all the stops in a family law motion – and making the other side angry – may break down any possibility of an informal settlement/agreement (and no time & money spend on a court hearing) before the process has hardly started. Why close that door unnecessarily? I’d much prefer to be a bit more diplomatic, a bit more neutral in my recounting of the circumstances, so that the door to settlement, the options for agreement without court intervention, stay wide open. There’s always time to fight more aggressively, but if you come across too strongly to begin with, then it can be hard to undo the alienation it caused, dial that back effectively & reach agreement.

All of these things have to be discussed between client and attorney to determine the best course of action, given the client’s all-around circumstances. I know a lot of attorneys who approach every case the same way. Sometimes it’s by going full-out on every case, whether it’s warranted or not. Sometimes it’s the opposite, and an attorney will do the bare minimum in each case. I just don’t think cases and clients can be lumped together that way, in a one-size-fits-all manner. Especially when it’s a family law case, with real and long-term repercussions for real people and children, too.

Clients and potential clients have told me about attorneys who have insisted to them that they “fight aggressively” for every client, on every issue, and that this is their job. There are plenty of attorneys who have this philosophy and act accordingly with their cases – and often, too, are quite proud of their “shark” reputation. Personally I think this is poor lawyering, at best, and unconscionable, unethical behavior at worst. Family law involves families, and figuring out how to approach each client, each circumstance, and each case is a balancing act of strong advocacy at all times, tempered by tact, gentle persuasion when appropriate, and consideration of the situation (and consequences of each action) at every turn. A case may start out both amicable and collegial between the parties, and then turn in to a high-conflict, difficult case requiring “shark-like” tactics. The reverse may also happen.

The point is to (1) meet the client where they are, and not try to force the case or its issues to be either higher or lower conflict than they are (though we always encourage settlement, we don’t encourage it when not fair or warranted), and (2) tailor the response to any situation by taking into account the entirety of the case, client, other party, finances, potential consequences, and circumstances in a holistic manner. Every case is different, so every case should be approached by the attorney in a way that’s consistent with the nature of the circumstances.

We do this because we work closely with our clients to achieve their best possible result, and we believe that tailoring the approach to the client and case is the only way to do that effectively. A highly aggressive approach may be appropriate in some situations, and may even be effective in many court situations, but when there are consequences that can do more harm that the aggressive “win” helped, we don’t think that’s the way to go. When choosing an attorney, I think these considerations are important. You want to be sure you’re picking the right attorney for you, your case & circumstances, and for your family and children.

Today we talked about how family law costs are unpredictable because cases vary so much in general. Tomorrow we’re going to talk about the unpredictability of case fees in another way – how the actions and response of the other side/party make all the difference in the world…and again, can’t be predicted with any accuracy.

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