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How much will my divorce cost?
Any client asking a lawyer how much his or her divorce will cost is likely to be met with the not entirely helpful response ‘how long is a piece of string?’
This article is intended to give some general help with understanding what cost variables are in a divorce case.
Although in many cases it isn’t possible to predict in advance what the final cost of a divorce will be, it ought with a bit of analysis to be possible to provide a very, very rough estimate. Certain variables in divorce are known in advance. For example in any contested divorce, the court will fix a timetable which stipulates periods for lodging and exchanging of various documents including any defence, and the fixing of what is called an options hearing. It is at the options hearing the sheriff will assess the parties’ readiness to proceed with the case to a final hearing, called a proof.
There are also various fees which require to be paid to the court, and the lawyer will know what these will be.
All of this is reasonably standard.
One major variable is of course the basis on which your lawyer chooses to charge for the work they do. Lawyers are now required to send clients a letter setting out their standard terms and conditions which will include their charging rates. By comparison, under legal aid, the Legal Aid Board will pay a fixed fee to a lawyer for all work done up to a certain stage of a case. The client may be able to come to an arrangement with their lawyer for a fixed fee on a similar basis. However, many, if not most lawyers, dealing with private clients would probably prefer to charge on a strict ‘time and line’ basis. That means they would expect to be paid for each item of work done – writing a letter, reviewing a document, meeting with a client, phoning the client or the opposing lawyer – and so on. The disadvantage of that kind of arrangement is that you the client have little control over the bill for your case. The client therefore needs to establish what exactly is the basis on which they’ll be charged for their lawyer’s work.
You can of course help yourself – and I encourage all my clients to do this where this kind of arrangement operates – by not making too many calls to your lawyer or keeping meetings to the minimum absolutely necessary. It also helps to keep meetings as short and as focused as possible. All of that can be done with good preparation. I also encourage my own clients to correspond with me where possible by e-mail as I would not generally charge at least for reviewing an incoming e-mail unless it was extremely long.
What the client can’t control of course is the activity of their spouse’s lawyer who may be firing off multi-page letters at a time – for review of all of which your own lawyer would be entitled to charge – and/or court motions (applications for interim orders.) Your lawyer then of course needs to speak to you about these and then act on your instructions.
The other variable that is difficult to predict unfortunately is incidental applications to the court called motions. These are applications to the court for immediate orders whether in relation to financial issues or the children of the marriage. If a motion is opposed, it results in a hearing having to be fixed, which obvious results in increased cost. I’ve dealt with some cases where I personally have had to make a very large number of motions for the client. In other cases, the other side might have a habit of making motions to the court.
When it comes to preparing for the proof, the costs can unfortunately escalate quite considerably especially if you’re the Pursuer in the action. That’s because, as the Pursuer, you’re responsible for arranging and paying for a shorthand writer to take down the evidence. Shorthand writers charge £50 per day just as a reservation fee. The cost for attending the proof runs into several hundred pounds per day, additionally, whether or not the notes are actually typed up. If the notes do have to be typed up, then the costs escalate massively. The cost of preparing typed notes of evidence is very high, and can run into thousands, depending on the length of the proof.
It is also likely that in the run up to the proof, further motions to the court may have to be made. Additionally witnesses will have to be cited and even before then they have to be interviewed, statements taken from them, and prepped for proof. Obviously, that doesn’t mean being coached. It is though entirely permissible, and frankly advisable, to make sure a witness knows as far as possible what areas they’ll be asked to cover when giving evidence and also how to present in court. For example, witnesses should be told to keep their answers short, to keep their cool, to dress appropriately, not to answer questions they don’t know the answers to – and so on.
It’s important for the client to understand and accept that the more witnesses cited, the more the cots will escalate because of the court time involved in hearing those witnesses. A witness list should be kept as short as possible.
Then there is then the cost of the lawyer’s own time at court. A day in court for a lawyer assuming a start time of 10:00 until 16:00 could cost a reasonably well-off client £2,000 assuming a charging rate of £250 per hour. (My own hourly rate is lower than this). Some lawyers charge even more. You could, of course, ask your lawyer to agree a daily fee, and some may do this.
Your lawyer may well suggest in some situations that due the complexity of the case, they would want to instruct counsel. This means they would contact an advocate in Edinburgh, either senior or junior, and they would have primary responsibility for dealing with your case. This should be avoided at all costs. At the very least, you should take a lot of persuading that this would the correct course of action. Advocates are extremely expensive, and their involvement adds another significant layer of cost to a case. Many advocates would charge around £1200 for a single day in court, for example, regardless of how long a time was actually spend in court. You would also have to pay your own lawyer’s charges for instructing counsel, because counsel are not generally allowed to deal directly from the client.
The next problem is in relation to the expenses of the court case. Generally Scots law operates a rule whereby if you win a case, your opponent has to pay not just their own legal expenses but yours as well. That rule is subject to various modifications. If your spouse is on legal aid, they can apply to the court for an order that they shouldn’t have to pay expenses, or all of them. If the Sheriff
feels that in a case involving a number of issues, there’s been mixed success, the expenses may be shared.
The other thing to bear in mind is that even legal aid clients aren’t always protected from this rule. That’s because the Legal Aid Board have a rule that where a lawyer recovers money for a client who’s on legal aid then the first claim on that money is whatever the Legal Aid Board have paid to the lawyer i.e. the cost of the case. The first £5000 or so of any money they get is however exempt from recovery. Anything over that amount will attract the so-called ‘claw-back’.
If after divorce proceedings have been raised, there’s any proposal for settlement, it’s important to be alive to the issue of expenses whether you’re on legal aid or not. Your lawyer should make this clear for you but you should always make sure you know what you’re actually going to get at the end of the case.
A client should never, therefore, accept the answer quoted at the start of this article. While it will rarely be possible to tell a client exactly what a case might cost, it ought to be possible to give the client ballpark or conditional figures.
It is also important for the client – and frankly just as much for the lawyer – to make sure anything said about fees is put in writing. I used to handle complaints reporting for the Law Society on an ad hoc basis and a frequent source of trouble was the failure by the lawyer and client to put in writing any agreement on payment of fees. A client might for example claim that their lawyer told them their case would cost no more than a certain amount. They would then complain if the lawyer ultimately billed them for more than that. Review of the relevant file often revealed nothing to support that claim.
Always, therefore, get it in writing.
To summarise, the client needs to:-
1. Establish the basis on which they’ll be charged legal fees, and also query whether the fees mentioned are negotiable, and if so, on what conditions.
2. Get fee terms confirmed in writing
3. Make sure that meetings and court motions are kept to the minimum necessary for the proper conduct of the case
4. Know what their case is likely to involve in general terms – number of witnesses likely to be required, involvement of experts and associated costs, expected duration of proof, documentation to be reviewed, involvement of counsel – and so on.
5. Fully understand the implications of any settlement proposal in terms of cost to them.
copyright Al Gordon 2009
01 May 2009
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