Economics of Family Law: Alternatives for Attorney’s Fees in Family Law Cases

Outside the United States, the term “attorney’s fees” is not often heard (there are analogous terms in other countries).  It is largely part of the United States legal system and is used to refer to an attorney’s compensation for legal services. While sometimes daunting, especially in family law cases, there are attorney fees payment options specific to family law that are worth knowing.

First, it is important to note that most states, like California, make accepting a contingency fee for a family law case a violation of rules of professional conduct or canons of ethics.  Rule 1.5 of the ABA Model Rules of Professional Conduct provides guidelines on attorney’s fees.  As it relates to family law, the rule states that a “lawyer shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.”  This rule expressly prohibits attorneys from accepting family law cases on a contingency basis; that is, an attorney’s compensation may not depend on the outcome of the case.  This could limit the ability of some parties to obtain a lawyer in divorce proceedings.

However, there are other ways of compensating a lawyer for family legal services.  Section 2033 of the California Family Code states that either party to a divorce “may encumber his or her interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.”  This encumbrance is known as a “family law attorney’s real property lien” (FLARPL) and attaches only to the encumbering party’s interest in the community real property—providing parties to a family law case the opportunity to compensate their attorney following representation.  A FLARPL allows a party without liquid assets to access their interest in the home’s equity to compensate a family law attorney in divorce proceedings where they could not otherwise afford it.

While contingency fees are disallowed in the divorce context, parties should seriously consider the option of a FLARPL when obtaining a divorce lawyer.  A FLARPL secures attorney’s fees, however, parties may always choose to pay their attorney over time and keep their interest in their home equity instead.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed family law issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization