Most family law attorneys require payment of a retainer when you retain their services. A retainer is a lump sum of money that you pay to the firm so that they can collect payment of fees due to the firm for work they complete for your case, as those fees become due. Sometimes you will be required to replenish your retainer when it is depleted. Other firms may request that you leave a credit card on file for billing after the retainer is depleted. In any event, most divorces are not done for a sum certain, or a “flat fee”, and a lot of clients do not understand why.
First, attorneys are billed for their time in general. In family law cases they usually have an hourly rate which is generally pro-rated in various increments. The reason why a retainer is required is because every case is unique. When you hire an attorney, they have no idea whether or not your spouse is truly “in agreement” with what you and your spouse discussed for your “uncontested” divorce matter. (Although we are happy to draft an agreement if there truly is one.) We also have no way of knowing whether or not your case will settle, go to hearing on a particular issue, or go to trial. These cases, depending upon how they proceed, require a different amount of time from your attorney. It is hardly fair for the attorney to be paid the same amount for a case that takes 4 hours to complete as a case that takes 100 hours to complete. No attorney would want to work for the same amount of money for 4 hours or 100 hours. In fact, I don’t think any employee would want to work for the same amount of money for 4 hours versus 100 hours. If you work at McDonald’s and they told you that they are going to pay you $100 whether you work 4 hours or 100 hours, let’s be honest—you’d probably quit. The same logic follows here. We do not possess a crystal ball that will tell us how much time we will spend on your case, and because of this, we have to take a retainer.
The good news about a retainer is that if the entire retainer is not depleted due to working on your case, any sums that remain are typically returned to you. So, you have nothing to lose by paying the retainer. Any sums that are not used for services do get returned to you.