How Much Will a Divorce Cost: Complete Guide to Attorney Fees in Orange County

Everything you need to know about the Cost of Divorce in OC

A question we hear all of the time from our clients is “How much is this divorce going to cost me?” The answer we give all of the time: “It depends.” This is the only correct answer to the question because no one can handicap exactly how much a divorce will cost at the beginning of the process. We can tell you that two variables increase the cost of a divorce: complexity and unrealistic expectations. This article will examine each and explain how we try to minimize the costs if one or both of these variables is present in the case.  This page discusses in detail the following issues relating to attorney fees in divorce/family law:

• Selecting an attorney that is a good value for your case;
• Different types of cases that increase the cost of a family law matter;
• Using community property assets to pay for an attorney;
• Attorney fees awards based on need;
• Attorney liens;
• How to file an attorney fees request;
• Whether a third party can pay someone’s fees;
• Sanctions in family law cases;
• Attorney fees in DV cases; and
• How much to expect to pay in fees for a divorce case.

How Much does a Divorce Case Cost in Orange County, Generally?  What can I Expect to Pay in Attorney Fees for my Divorce?

Divorce cases can cost as little as around $450, which is for the filing fee required in Orange County to initiate a divorce case.  For this cost, the party does not have the advice of an attorney to help them, they make all court appearance on their own, etc.  If attorneys are involved, the cost depends on how cooperative the parties are and how complex the issues are.  Cases can be more complex, and therefore more expensive, due to certain factors involved in the case such as:

• When parties argue over custody of children;
• When there are one or more real properties;
• When a party is self-employed;
• When the parties do not get along and do not talk;
• When one or both parties have unreasonable attorneys;
• When the parties have retirement accounts and/or pensions;
• When domestic violence is involved;
• When there is a premarital agreement;
• When one or both parties fail to accurately disclose all financial information.

These are just some of the thousands of ways a case may take longer than a “run-of-the-mill” type of divorce case and will be more expensive.  Ideally, if parties agree to settlement terms early on in the case the cost will be far less than if multiple hearings are required, discovery has to be initiated, and so forth.  A rough estimate for an “easy” case will be around $2,500 to complete the case.  The cost will go up from there.  An average cost for a divorce case in Orange County will be somewhere between $5,000 and $15,000 for the majority of cases.

Payment of attorney’s fees and costs is a hot-button issue in nearly all family law matters.  Litigating in court can be expensive, and while the law is designed to help “even the playing field,” it is not a perfect system.  There are various ways to pay for an attorney and there are various mechanisms available to the court to order payment of fees from one party to another. The types of cases that the Family Court is permitted to order attorney fees include:

• Divorce, legal separation and nullity cases
• Paternity cases
• Child support cases
• Child custody matters
• Post-judgment cases
• Enforcement and Collection cases
• Domestic violence cases (restraining orders)

This guide is intended to help represented parties, self-represented parties, and people anticipating divorce litigation understand the methods for payment of attorneys fees and costs and understand the nuances in the law that pertain to attorney fees.  If you don’t understand the nuances, your chances of success in request fees or defending the opposing party’s request for fees will be reduced.

Complexity

Generally speaking, a divorce with children, a large gap in income between the parties and significant assets (i.e. “high asset” cases) will be more complex than a case where the parties have no kids, earn similar income and own few assets. However, agreement dramatically reduces the costs of complex proceedings. The reason: Court = more fees. In Orange County, a litigant could spend up to 6 hours of attorney time in court each day. Add in the attorney’s preparation time, and you have spent a small fortune on one day in court. Beware that some Orange County divorce attorneys have a billing rate of over $500 per hour. Unfortunately, this rate prices out a large portion of the Orange County population. At Wilkinson & Finkbeiner, we pride ourselves on keeping our billing rates very competitive with other matrimonial law firms, while achieving excellent results.

Rather than adopting a litigious approach, it is our policy to explore settlement whenever possible. Settlement depends on two parties who value “being done” over winning. These parties are not interested in using the dissolution process to “get even” with the other party. If the client’s priority is to resolve the issues in the case expeditiously, settlement is the way to do it.  In cases where the client has a clear picture of the marital finances, we often serve a proposed Marital Settlement Agreement with our initial pleadings on the other party. Usually, this action will result in a counter-proposal, an invitation to attend a 4-way (settlement conference) or in some cases, a signed Agreement. We often find that the parties have already discussed a potential settlement with each other before retention of their attorneys. This is beneficial because it saves a lot of “back and forth” between the attorneys.

Such an approach is not always feasible, and litigation is on the horizon. Let’s discuss the types of litigation we see in complex divorce cases.

Custody Disputes

Protracted custody disputes can be very expensive. The first step in seeking custody in Orange County is to file a Petition for Dissolution and a Request for Order for custody and visitation. The filing fee for a Petition is $435, and a Request for Order runs $90 (these amounts constantly change, by the way). Upon the filing of the Request for Order, the court will schedule a mediation date and a hearing date. If mediation does not result in agreement, the court will make temporary custody orders at the hearing. At Wilkinson & Finkbeiner, we prepare our clients for their testimony and gather any documentation that would be helpful to our client’s custody case. Upon making the temporary custody orders, the Orange County the judge may refer complex custody cases to a custody evaluator.

The purpose of a custody evaluation is to obtain additional information for the court to have before making final custody orders. We tend to see custody evaluations situations where both parents are requesting the majority of the parenting time. These situations usually involve: 1) One parent requesting to move away with the children to another country, state or distant county; 2) One or both parents alleging the other is engaging in concerning behavior around the children and/or 3) The court electing to receive the testimony of a minor about his or her custodial preference in the custody evaluation rather than in court. In Orange County, custody evaluations performed by court personnel will run each party about $750. However, where the parties have the means and the issues, a custody evaluation completed by a licensed psychologist in private practice will run anywhere between $5,000 and $12,000. The court will order the parties to pay the retainer for the custody evaluator commensurate with each party’s ability to pay.  You can find what you need to know about custody evaluations by clicking here.

Sometimes, after receipt of the report of the custody evaluation, settlement discussions will ensue. At that time the parties will have more information about the validity of their claims against the other parent. If these negotiations are fruitful, the parties can avoid a trial on custody and enter into a Stipulated Judgment for Custody and Visitation. However, the opposite can happen as well. The custody evaluation may result in the party that “wins” the custody evaluation becoming more ensconced in his or her position. On occasion, the evaluation has errors, leading to the hiring of another expert to criticize the evaluation (a “733” expert). If trial is a necessity, then the litigant will likely have to pay either the custody evaluator or his or her 733 expert to testify. This expense is on top of the fees paid to the attorney to prepare for and attend the trial. Depending on the number of witnesses, availability of the court and depth of issues in the evaluation, the custody trial can consume a number of days.

Domestic Violence Disputes

If you believe your spouse has committed domestic violence against you in the recent past, it is best to seek a restraining order at the very beginning of the divorce case. There is no filing fee for a request, but at least two restraining order hearings are scheduled. Your Wilkinson & Finkbeiner domestic violence attorneys will meet with you personally before the domestic violence trial to prepare you for what to expect.

Financial Disputes

Financial litigation in divorces generally involve disagreements over the following issues: 1) The income earned by one or both parties; 2) The interest that the community has in an asset owned and/or operated by one of the spouses.

At the beginning of a divorce case, the lower-earning spouse often files a Request for Order for child support, spousal support and attorney’s fees. For the court to make the proper orders, the judge must ascertain each party’s monthly income. Where the parties are salaried employees, this inquiry is simpler because their pay stubs or W-2s will normally tell the story. However, if one of the parties is self-employed, a more thorough examination of the other party’s finances is warranted.

Wilkinson & Finkbeiner child support and spousal support attorneys routinely propound discovery on the other party in time for the initial support hearing in order to gain an early understanding of the other spouse’s finances. Wilkinson & Finkbeiner divorce attorneys will also serve subpoenas on various entities that possess information about the other spouse’s finances. This procedure is necessary to overcome the hearsay objection from the other spouse’s attorney and to fill in any missing information the other party “forgot” to provide in his or her discovery responses. The cost of a subpoena will vary, but one typically runs between $75 and $300 plus a service fee of about $95.

In some cases, the client may need to hire a forensic accountant to formulate an opinion as to the other party’s income available for support. Depending on the number of businesses involved, the amount of documentation to review and the billing rates of the forensic, retaining an accountant will run anywhere between $3,500 and $7,500 and could end up costing several thousand more dollars if the case is especially complex.

Again, the parties will have the opportunity to settle on a temporary support figure. However, if settlement is not in the cards, the court will decide at the hearing. Often the Court will enter temporary support orders prior to the forensic work and reserve jurisdiction back to the date of filing the first Request for Order to change the orders if the accounting reveals the income found by the court was way off.

At trial the Court will make final custody and support orders and divide the community estate. Through the discovery process we try to gain an early idea of the value of the assets to be divided by the court. If necessary, our office will file discovery motions to obtain documents from evasive parties. Once we have reviewed the discovery, we are able to advise our clients whether it is wise to spend a lot of dollars on the asset in question.

Before we take the matter to trial, Orange County property division lawyers will determine which assets have a community interest and seek a distribution of the property according to the priorities of our clients. If our client has a separate property claim to any assets in dispute, we marshal the documentation necessary to prove up the claim. Generally, it is prudent to hire a forensic to bolster a separate property claim. Depending on the number of issues, a divorce trial could take anywhere between a few hours to several days and in some cases, weeks.

In cases where several days of court time are anticipated, we recommend stipulating to use the services of a private judge. Based on our experience, private judges run anywhere between $400 and $500 per hour. You are paying them to review the pleadings, hear the evidence and make decisions about your case. Since your case is the only one on the judge’s calendar for that day, your case receives maximum attention. We find that private judging saves time and money in the long run because you avoid the multiple continuances that occur because you are competing with other cases for court time.

Once the court makes a decision, one of the attorneys will draft a Judgment for the other attorney’s review. After approval, it will be sent to the Court for signature by the judge.

Managing Expectations

When you hire an attorney you expect zealous advocacy. You will receive plenty of that at Wilkinson & Finkbeiner. However, your attorney also owes you some honesty about the validity of claims you have in your case. Early in the case we educate our clients on the applicable law, advise them of their chances of success on each of their objectives and project an approximate cost of litigation the issue in question. It makes no sense to spend time and money on hopeless pursuits. Family courts are clogged with self-represented litigants who have no idea about what a judge cares about when making decisions about their case. Not only do we know the law, we have experience dealing with all of the Orange County family court judges.

The bottom line is that the cost of your divorce will depend on a variety of factors, all of which can be managed by the skilled Orange County family law attorneys at Wilkinson & Finkbeiner.

Selecting an Attorney that is a Good “Value”

Selecting the right attorney is crucial to success in family law cases, as well as saving on fees, particularly when the opposing side has a seasoned attorney working hard on their behalf.  There are good attorneys and there are bad attorneys.  There are honest lawyers and dishonest lawyers.  Finding the right one can be difficult. Many people think that having a dishonest, overly-aggressive attorney is good for their case because they will make things difficult for the opposing side.  However, the opposite effect will occur.  Dishonest attorneys are known by all the Orange County judges and they are usually not taken seriously.  Their arguments in court will be viewed as unreasonable even before they begin.  Further, dishonest and overly-litigious lawyers will unnecessarily increase the cost of litigation and any value they may serve in the short term will vanish.  And when a party requests fees to pay for their overly-aggressive and unnecessarily litigious lawyer, the Court will not likely grant enough fees to nearly cover the cost.

However, that is not to say that aggression by a family law attorney may be warranted and necessary in a particular case.  Often, vigorously defending a motion or fighting for what is just and proper is the only way to get an end result that is appropriate under the circumstances.  A divorce and family lawyer should not be afraid to initiate discovery, file motions and take other steps in litigation to achieve a desired result. In short, despite the court’s ability to grant attorney fees, parties to divorce and other family law cases should find an experienced, honest and bright attorney to represent them so that in case fees are not reimbursed, the minimal amount of fees will be spent out-of-pocket.  If pursued properly, “aggressive” litigation steps under particular circumstances are warranted and necessary. CLICK HERE for our guide to selecting the best attorney for your case.

Can a Party use Community Property Money to Pay for an Attorney?

Yes.  In a divorce, legal separation or nullity case, absent a specific court order to the contrary either party is permitted to use any community funds to pay his or her attorney.  Many divorcing spouses are unsure whether it is allowed to take money for hiring an attorney.  Because community property is “joint” money, each party owns one-half of those funds.  Hiring an attorney is a basic right in family law cases and no Orange County judicial officer/judge will look down on a party for taking community funds to hire an attorney.  It happens everyday.  In the paramount Elkins case, the California Court of Appeal went through great lengths to ensure that parties that represent themselves have an equal footing in family court, and that parties should have access to an attorney of their choice.  Further, the funds to pay an attorney’s retainer can be taken before the commencement of a case or after the commencement of a case. A common myth that divorcing litigants have is that they are prohibited from using community funds to hire an attorney after a case is filed due to the Automatic Temporary Family Law Restraining Orders (ATROs) listed on the back of the Summons issued in every family law case.  However, the law specifically provides several exceptions to the ATROs, which include using money from joint sources to hire and pay a family law attorney.

Payments of Attorney Fees based on Need and Ability to Pay

What happens in circumstances where one party is in control of all the community funds?  How can the other party pay for a divorce attorney in those situations?  Or what if there are minimal community assets but one party makes substantially more of an income than the other party?  The law provides a mechanism for the spouse with limited access to funds, or limited income, to request attorney fees from the other party by filing a Request for Order motion.  A motion is a request made by one party to the court to make certain orders. Attorney fees awards based on need are found within Family Code Sections 2030-2034.  The preeminent section is Family Code 2030, which provides the following rules/instruction in simple language:

• The court is admonished (using the word “shall”) to ensure both parties have access to legal representation, including access early in the proceedings;
• The award is based on the income and needs assessment of the respective parties;
• The court may award whatever amount is reasonably necessary to maintain or defend the proceeding;
• There is nothing in Fam. Code 2030 that limits a party’s right to file continual requests for fees, and subsection (c) allows the court to “augment” the award later in the proceeding;
• The court is required to make a finding that an award of fees is appropriate given the circumstances;
• The court must consider whether there is a disparity of income and/or access to funds;
• A party that represents themselves may request an attorney fees award in order to go out and hire a lawyer;
• Nothing in the section limits a party’s right to seek attorney fees from any third party that has been joined in the case as a party.

Interestingly, Family Code 2031 allows the court to make an attorney for attorney fees without there even being a noticed motion, so long as the request is made orally at a hearing or before a default judgment is entered.  This approach is not advisable, even though it is permitted. Family Code 2032 provides all the factors that the court will consider in making an attorney fees award based on need.  These include, in simple language:

• The court should find that the award is “just and reasonable”;
• The court shall consider the need of an award to enable a party to present an adequate case, taking into consideration the factors of Section 4320;
• The fact that a party may have some resources to pay an attorney is not in itself a bar to an award of fees;
• The court may order fees from community property or separate property, or both, or income; and
• Either party may request that the court make a finding that the case involves complex or substantial issues of fact or law related to property rights, custody of children, or support.  Upon such a finding, the court can determine what is just and reasonable for expert fees, consultant fees, and attorney fees and the court may make an equitable allocation of resources for the parties.

What is a Family Law Attorney’s Real Property Lien (FLARPL)?

Parties are authorized under California Family Code 2033 to encumber their share of community real property in order to retain an attorney of their choice.  In these circumstances, the party signs a promissory note to the attorney and a lien is processed against the home.  There are many formalities that are necessary to effectuate this arrangement, which your family law attorney can discuss with you.  Under Family Code 2034, the court may prohibit a party to effectuate a lien if the lien may prohibit the other party’s right to their fair share of community property (i.e. there must be sufficient equity in the property).

What Information is Required or Important to Include in an Attorney Fees Request?

Recently, the law changed to require certain information to be included in an attorney fees motion before a request for fees is granted.  There are several forms that are “necessary” (although a recent Court of Appeal decision stated that so long as information substantially similar to the forms is provided to the family court, the forms are not necessary).  Use of the forms should be done in all cases so there is no question that the request is properly made and all the required information is included.  The necessary forms include:

• Form FL-319
• Form FL-158

In addition, the law requires a statement about the attorney indicating their level of expertise, hourly rate, the nature of the litigation, and so forth. The information that must be provided to the court will include the similar analysis for “permanent” spousal support, found within Family Code Section 4320. Finally, when any financial request is made in the Orange County Court, an up-to-date Income and Expense Declaration (form FL-150) is required.  This form should be current within 30 days; however, usually it is “current” for purposes of a hearing if it was executed within the previous 90 days.

Can a Third Party Pay for my Attorney Fees?

Yes.  The law allows for a party to seek alternate sources for payment of their attorney fees.  Often, family members or friends may be willing to help pay for a party’s attorney costs.  In those situations, the person paying the fees is known as the “third party payor”.  They pay the fees but since the California Rules of Professional Conduct for lawyers prohibit an attorney from taking direction in a case from anyone but the client, the attorney must always defer to the client’s wishes and instruction in this case.

What are Family Code 271 Sanctions?

The court may sanction a party for their bad faith litigation tactics or bad faith negotiating efforts.  Here are some examples of when a motion under Fam. Code 271 is warranted:

• When a party continuously fails to appear for noticed court dates
• When a party reneges on an agreement
• When an attorney uses bad faith tactics in the case
• When a party does not participate in a settlement conference
• When a party refuses to “meet and confer” to try and resolve issues or narrow the scope of issues to be litigated

Before a court awards attorneys fees as a sanction, the party requesting the fees has to file a motion and serve it on the other party.  Many times, litigants believe that 271 sanctions are “trial” issues, which they can be but a notice motion must be filed in advance.  Family Code Section 271 provides in full:

• (a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.

• (b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. (c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.

Are Attorney Fees Payable in Domestic Violence Cases?

Yes.  The law states that fees are “mandatory” in cases where domestic violence is found to have occurred.  The victim of domestic violence must file a request, either before or after the temporary restraining order is filed, requesting that the perpetrator pay their legal fees.  A hearing will occur on how much will be payable by the perpetrator.

What are Some Other Ways the Court May Order Fees?

There are a variety of other reasons the court may order fees in a particular case, including the following examples:

• When a party is forced to initiate a request to enforce a court order, or collect on an order or judgment, attorney fees will likely be ordered.
• When a party is forced to initiate an action to collect past due child support, fees are mandatory.
• When a party has been found to have wilfully failed to disclose assets or income, fees will be ordered against that party along with other sanctions.

Practical Application to Fees Ordered in Orange County Divorce and Other Family Law Cases

When you walk into court, your control of the case is gone.  Judges in Orange County Family Court have immense power and discretion to award fees.  There are exceptions to nearly every rule.  We have argued and been awarded sanctions against the other party into the tens of thousands of dollars.  We have received large attorney fees awards in high-asset cases.  We have been through it all and know what the court looks at when ordering fees.  Call or email us today to learn more.

How to Keep Divorce Costs as Low as Possible

Here are some helpful tips to try and keep your divorce case fees and costs to a minimum.  As expressed throughout this page, there are a variety of “unknowns” that you and your attorney cannot control that will effect the overall cost of a divorce case.  However, there are lots of things you can do to minimize the fees and costs involved in a divorce.  These tips include:

• Keep organized files and notes.  This helps you have shorter meetings with your attorney to keep the fees down.  The more prepared you are to discuss only the relevant issues the shorter your meeting will be and therefore less costly.
• Do your own investigative work.  Divorce cases are largely won and lost based on information.  The more you have the better.
• When communicating with your attorney by email, try to consolidate your emails into one succinct correspondence.  If your attorney receives 5 emails they will likely charge an increment of time to read each email separately, whereas if they read one email the total time charged will likely be much less.
• Try to resolve as many issues as you can with your spouse without attorneys.
• Develop a good relationship with your attorney’s paralegal.  Communication with an attorney’s staff is less costly.
• Write out your thoughts for declarations (pleadings that are filed with the court) in Word or WordPerfect so that your “statement” can be emailed to your attorney and then copied and pasted.

If you are considering divorce and you do not know where to start, do not hesitate to contact our office by email or call (949) 955-9155 to schedule a free consultation.