California Family Law Regarding Contingency Fees

By Marcy Brinkley

Contingency fee arrangements are used frequently in personal injury and medical malpractice cases to ensure individuals with limited financial means have their day in court without a large cash outlay. In most states, attorneys in family law cases such as divorces, adoptions, child support and visitation litigation are not allowed to accept contingency fees.

Contingency fee arrangements are used frequently in personal injury and medical malpractice cases to ensure individuals with limited financial means have their day in court without a large cash outlay. In most states, attorneys in family law cases such as divorces, adoptions, child support and visitation litigation are not allowed to accept contingency fees.

Contingency Fees

A contingency fee is a contractual agreement to pay an attorney with a percentage of the proceeds from the case, if any. Typically, the attorney deducts the cost of court fees, witness fees, copies and other expenses from the settlement or court judgment and then deducts his percentage of the client's net recovery before issuing a check to the client. For example, assume that a case is settled for $50,000; costs and fees total $5,000; and the attorney's contingency fee is 30 percent. The attorney will first deduct $5,000 (case costs and fees) from the gross judgment of $50,000, leaving a net judgment of $45,000. From these funds, the client will receive $31,500 (70% of net recovery) and attorney will receive $13,500 (30% of net recovery). If the client receives no money from the case, the attorney receives no payment.

Divorce is never easy, but we can help. Learn More

Family Law

Most states, including California, prohibit attorneys from entering into agreements to handle family law cases on a contingency fee basis. The California State Bar's rule, which is based on the American Bar Association Rules of Professional Conduct, states the fee cannot depend on the outcome of the case. In other words, the attorney cannot be paid a percentage of the child support, alimony or property division in a divorce case. This policy against contingency fees in family law is meant to prevent conflicts of interest between the attorney and client when litigating or settling the case.

Contingency Fee Alternative

If a divorcing spouse does not have sufficient funds to retain a lawyer, she may enter into an alternate arrangement known as a family law attorney's real property lien, or FLARPL, if the attorney agrees. The FLARPL attaches the party's interest in the couple's real estate to secure payment of attorney fees for a divorce, legal separation or annulment. The attorney may be paid from the proceeds of the sale of the property, or the client may choose to pay cash from other assets. Unlike a contingency fee arrangement, the attorney's fee is not based on the amount of child support, alimony or other property awarded.

Options

If a prospective client has no community property and limited cash, the attorney may be willing to accept a lower hourly fee. She may also agree to accept a smaller retainer than she usually charges and allow the client to make installment payments over the course of the case. Many free legal services do not handle divorces but will assist divorcing couples in handling their own divorces. Some agencies will refer low-income clients to an attorney willing to handle the case pro bono, meaning at no cost, but these situations generally are limited to cases that involve divorce from an abusive spouse or other special circumstances.

Divorce is never easy, but we can help. Learn More
How to Find an Attorney Who Will Work on Contingency

References

Related articles

The Fee for the Executor of a Will in North Carolina

The individual selected as executor of an estate doesn't have an easy job. She must inventory assets, notify the deceased’s creditors, decide if creditor’s claims are legitimate, and deal with beneficiaries who may or may not be pleased with the decisions she’s made. Most states allow executors to accept financial compensation for all this work and North Carolina is no exception. When a testator -- the person who makes the will -- sets payment for his executor in his will, the terms of his will prevail; otherwise, North Carolina’s probate code determines payment.

How to Choose a Good Divorce Attorney

As of 2012, there were just over 1,268,000 licensed attorneys practicing across the United States, according to the American Bar Association. Since attorneys typically have specific areas of expertise and methods of practice, if you're going through a contested divorce, you'll want to find an attorney that's right for you. You should take some time to research lawyers in your area -- and not rely on luck when choosing your divorce attorney.

How to Revoke a Contingency Fee Contract & a Power of Attorney

Generally, a grantor may revoke a contingency fee contract and a standard power of attorney at anytime. These types of agreements allow for immediate and direct revocation by providing notice to the affected parties. If a court mandated that you are incompetent and granted power of attorney over you to a third party, you will have a much more difficult time revoking a contingency fee agreement and a power of attorney agreement unless you can persuade the same court that you are competent.

Get Divorced Online

Related articles

Why Does Attorney Get Fees With Child Support Order?

Most attorneys charge for their services, whether those services deal with child support issues or anything else; ...

Houses Split Between Siblings in a Will

One of the most common directives in a will reads “my estate shall be divided equally among my children.” ...

Questions to Ask a Divorce Attorney

The legal procedures for obtaining a divorce in your state can be financially and emotionally draining. However, if you ...

How to Get a Divorce Lawyer When a Person Has No Money

Unlike criminal cases, where you may be entitled to a court-appointed attorney if you have no money, in divorce cases, ...

Browse by category
Ready to Begin? GET STARTED