The DIVORCE Retainer

One of the most problematical areas of divorce is the “retainer”.  The vast majority of family law attorneys usually charge a standard retainer usually exceeding $5000.00. In most cases, the retainer is an advance charge for initial fees and hourly costs. If said fees and costs result in less than the initial retainer, then a client is entitled to a refund though most clients are not aware of this so it is not unusual for clients to be overcharged in this manner.  Likewise, if fees and costs exceed the initial retainer, the client will be billed additional amounts.  Current Illinois law requires that law firms send out at least quarterly billing and itemization statements without charge to the client. A client can request monthly billing statements if they so choose.

The law regarding retainers is becoming more complicated as a result of the “Leveling the Playing Field” law in Illinois. This law is intended to prevent one party from exhausting marital assets to hire an attorney thus leaving the other spouse without adequate funds.  The party without adequate funds can petition the court for “interim” attorney’s fees to prevent such an unfairness but this is often problematical as well since said spouse needs to advance funds to an attorney to petition for such fees.

In certain cases, the courts will require the attorney who has been given the initial large retainer to “disgorge” or transfer an amount of said retainer to the needy spouse to level or equalize matters. As can be seen, this will all require extensive legal action and rarely will result in true equalization of attorney’s fees.

DuPage Litigation and Mediation Services (law firm of Michael A. Benedetto), to avoid such pitfalls and unnecessary litigation, offers “no retainer” or “pay as you go” legal fees. A small amount is charged against the client’s credit card to initiate representation and further charges are made each month as services are rendered. This eliminates the problem of needing a large amount down or placing the other party at an immediate disadvantage thus requiring unnecessary litigation. This process has worked successfully for a number of clients and prevented the multitude of problems associated with the initial huge retainer.

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