Hiring a divorce lawyer: the questions to ask
Most people hire the first divorce lawyer they meet, in a state of distress, without asking a single question about money. Below are 30 questions, grouped, each with why it matters and what a bad answer sounds like. Take the list in with you. A good lawyer will not mind; several will be relieved.
A lawyer may not charge you a fee that is contingent on getting you a divorce, or on the amount of alimony or support you end up with. That is not a custom, it is a professional conduct rule, and a lawyer who proposes it is telling you something important about themselves.
What the rules actually require of them
A lawyer’s fee must be reasonable, judged by specific factors.
ABA Model Rule 1.5(a) lists eight factors for reasonableness, including time and labor required, novelty and difficulty of the questions, skill required, fee customarily charged in the locality, and the experience, reputation, and ability of the lawyer.
the time and labor required, the novelty and difficulty of the questions involved… the fee customarily charged in the locality for similar legal services
The basis or rate of a fee must be communicated to the client, preferably in writing.
Model Rule 1.5(b) requires the lawyer to communicate the scope of representation and the basis or rate of the fee before or within a reasonable time after starting representation, preferably in writing.
When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
Contingent fees are prohibited in domestic relations matters where payment depends on securing a divorce or the amount of alimony, support, or property settlement.
This is one of the few outright bans on contingent fees in the Model Rules (the other is criminal defense). It exists because a lawyer’s financial stake in the divorce happening, or in maximizing support, creates a conflict with a client’s actual interests (e.g. reconciliation, or a negotiated settlement that isn’t maximal but is faster and cheaper).
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
Advance fees (retainers/deposits) must be held in a client trust account and are only earned as work is performed; unearned amounts must be returned.
Model Rule 1.15 requires a lawyer to keep client funds, including fees paid in advance, in a separate trust account, and to promptly deliver funds the client is entitled to receive, along with an accounting on request. This is the rule that makes a true ‘non-refundable retainer’ generally improper: money not yet earned is not the lawyer’s to keep.
A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
A lawyer may limit the scope of representation (unbundled/limited-scope), and most states now permit this, including in family law.
Under Model Rule 1.2(c), a lawyer may limit representation to specific tasks if the limitation is reasonable and the client gives informed consent, while still meeting competence and diligence obligations (Rules 1.1, 1.3). Most states have adopted the Model Rules or substantially similar provisions.
a lawyer may limit the scope of representation as long as 1) the limitation is reasonable under the circumstances and 2) the client gives informed consent… most states provide for some form of limited scope representation… the model rules or substantially similar rules have been adopted in most states.
State bars provide free, public lookup of attorney license status and disciplinary history.
Most state bars operate a searchable directory showing whether a lawyer is licensed, in good standing, suspended, or disbarred, along with a public discipline history covering a set look-back period (commonly around 10 years, with older records available on request).
The Florida Bar posts public record attorney discipline documents for the past 10 years
Standard attorney billing increments are commonly six, ten, or fifteen minutes, with six minutes (a tenth of an hour) widely used.
Reported consistently, not settled
Time is typically recorded in fractions of an hour rather than to the exact minute; a six-minute increment is the finest common granularity, meaning any task, however short, is billed at a minimum of six minutes unless the firm bills even more coarsely.
Courts in some states can order one spouse to pay the other’s attorney’s fees in a divorce, including via temporary orders mid-case.
Reported consistently, not settled
For example, Texas allows a request for fee-shifting as part of temporary orders when one spouse controls community funds and the disparity prevents the other from affording representation, and allows fee awards in the final decree under Texas Family Code s. 6.708. The exact standard and availability vary by state.
Generally, if someone wants to hire an attorney to represent them in a family law case, they are responsible for hiring and paying attorneys’ fees.
Texas Family Code s. 6.708 (example state statute)
A QDRO is a separate court order required to divide an ERISA-covered retirement plan; the decree alone does not divide it.
The plan administrator must ‘qualify’ the domestic relations order before it will pay any portion of retirement benefits to a former spouse. Without a valid, qualified order, the plan pays out strictly according to its own written terms, regardless of what the divorce decree says.
Without a valid QDRO, retirement plans covered by ERISA can only pay benefits under the terms of the written plan document.
Fees and the fee agreement
Why it matters. These are three different things and lawyers use the words loosely. Under ABA Model Rule 1.15, money paid in advance for work not yet done is a client trust fund, not the lawyer’s property, until it is earned; it must sit in a trust (IOLTA) account and any unearned portion must be returned to the client. A true ‘non-refundable retainer’ that the lawyer keeps regardless of work performed is generally improper under the Model Rules’ fee-reasonableness principle, because a fee that has not been earned cannot be kept.
A bad answer sounds like. Once you pay it, it’s mine, no matter how the case goes.
Why it matters. The ABA Model Rules require it. A lawyer who resists putting fee terms in writing, or who describes the arrangement only verbally and vaguely, is not meeting the professional norm and is harder to hold to any specific promise later.
A bad answer sounds like. Don’t worry about the paperwork, we’ll figure out the bill as we go.
Why it matters. This is one of the few outright-forbidden fee structures in family law. A lawyer cannot ethically tie payment to whether you get divorced or how much support or property you win. If a lawyer proposes anything that sounds like ‘pay me a percentage of the settlement,’ that is a serious red flag, not a bargain.
A bad answer sounds like. If we get you a bigger settlement, my fee goes up automatically.
Why it matters. Because advance fees are trust funds until earned, any unearned balance belongs to you, not the firm. A firm that hesitates or says the retainer is simply forfeited is describing an arrangement the Model Rules do not support.
A bad answer sounds like. The retainer is fully earned the moment you sign, so there’s nothing to give back.
Why it matters. This isn’t a rhetorical question. Model Rule 1.5(a) lists specific factors, including time and labor required, the novelty of the issues, the fee customarily charged in the area for similar work, and the experience of the lawyer. A lawyer who cannot connect their number to any of these factors is pricing arbitrarily.
A bad answer sounds like. That’s just my rate, everyone charges about the same.
Why it matters. A lawyer with a real, described process for billing disputes is signaling that clients do sometimes question charges and that it’s handled routinely, not as a confrontation. Evasiveness here often means disputes get discouraged rather than resolved.
A bad answer sounds like. My bills are accurate, there’s nothing to dispute.
Why it matters. Flat fees, where offered, give you cost certainty for well-defined tasks and shift the risk of scope creep to the lawyer rather than you. Not every matter is a good fit for a flat fee, but it’s worth asking which parts of your case might be.
A bad answer sounds like. I only do hourly, there’s no other option.
Billing mechanics
Why it matters. The industry-standard increment is tenths of an hour, six minutes each. A shorter task in a fifteen-minute-increment practice can round up to nearly triple the actual time, which compounds across hundreds of emails and calls over a case.
A bad answer sounds like. We round to the nearest quarter hour, it’s not a big deal.
Why it matters. The partner you meet in the consultation may not be the person drafting your filings. Knowing the blended team and their respective rates lets you estimate real cost and catch it if senior-rate work is being billed for routine tasks a paralegal could do.
A bad answer sounds like. I handle everything myself personally, don’t worry about who else touches it.
Why it matters. Some firms bill a minimum unit for even the shortest communication. If you send five short emails a day, a six-minute minimum per email adds up fast regardless of how brief the actual work was.
A bad answer sounds like. We just bill whatever time it takes, don’t worry about minimums, trust us.
Why it matters. Practices vary enormously here. Some firms bill travel at full rate, others at half; some do not bill for brief clarifying emails, others bill every message. You want this settled before the first invoice, not disputed after.
A bad answer sounds like. Everything gets billed, that’s just how it works.
Why it matters. Monthly, itemized invoices let you catch billing problems while they are small and correctable. Infrequent or vague invoices (‘legal services rendered: $4,200’) make it nearly impossible to verify the work matches the charge.
A bad answer sounds like. We send a bill when the retainer runs low, don’t worry about the detail.
Why it matters. Divorces routinely cost more than the initial retainer. Knowing the firm’s policy in advance avoids a mid-litigation surprise where your lawyer withdraws or pauses work at a critical moment, such as right before a hearing.
A bad answer sounds like. We’ll cross that bridge when we get there.
Why it matters. No lawyer can promise an exact total, since it depends heavily on your spouse’s conduct, but a lawyer who has done this before should be able to sketch a phase-by-phase range based on similar cases. Total refusal to estimate anything is a planning problem for you.
A bad answer sounds like. There’s no way to even guess, it could be anything.
Costs distinct from fees
Why it matters. Filing fees, process servers, and court reporter charges are pass-through costs, not attorney time, but they are real money and frequently omitted from a lawyer’s initial estimate.
A bad answer sounds like. Costs are minor, don’t worry about it.
Why it matters. Experts in contested custody or complex-asset divorces can cost thousands to tens of thousands of dollars, and someone has to pay a retainer to the expert before they start. Ask early, not when the expert invoice arrives.
A bad answer sounds like. We’ll figure that out if it comes up.
Why it matters. Even where fee-shifting is available, it is not automatic and does not arrive quickly, so you should not plan your cash flow around a reimbursement that has not yet been ordered.
A bad answer sounds like. You’ll definitely get that money back, don’t worry about the cost now.
Scope, staffing, and limited representation
Why it matters. Full representation from filing to final decree is not the only option. Most states now permit lawyers to handle a discrete task, drafting an agreement, appearing at one hearing, reviewing paperwork, under ABA Model Rule 1.2, as long as the limitation is reasonable and the client consents after being informed of the risks.
A bad answer sounds like. I only do full representation, take it or leave it.
Why it matters. Some firms staff court appearances with whichever associate is available that day rather than the lawyer you retained. If continuity in court matters to you, this needs to be settled at the outset.
A bad answer sounds like. Whoever’s free that day covers the hearing, it doesn’t really matter who.
Case-specific competence
Why it matters. General divorce competence does not automatically transfer to these specialized issues. A military pension division, for example, involves specific federal rules (the Uniformed Services Former Spouses’ Protection Act) that a generalist divorce lawyer may not have dealt with. A vague answer here is a real warning sign, not a formality.
A bad answer sounds like. I’ve done plenty of divorces, this can’t be that different.
Why it matters. A qualified domestic relations order is a separate legal document from the divorce decree, and a plan administrator must approve it before retirement funds actually move. Many general family lawyers refer QDRO drafting to a specialist and bill it separately; find out now, not after the decree is final and nothing has actually been divided.
A bad answer sounds like. The decree covers that, we don’t need anything extra.
Why it matters. No lawyer has handled every fact pattern. What matters is whether they recognize the limits of their own experience and bring in help (a valuation expert, co-counsel with military-benefits experience) rather than muddling through a genuinely unfamiliar issue on your case.
A bad answer sounds like. I can handle anything that comes up, no need to bring anyone else in.
Why it matters. If your case involves more than one state, a lawyer should be able to explain, without jargon, which state has ‘home state’ jurisdiction and why. An answer that avoids the specifics suggests unfamiliarity with a technical area where mistakes are hard to undo.
A bad answer sounds like. That’s not really something we need to worry about.
Strategy and honesty
Why it matters. A trustworthy lawyer gives you a range grounded in your state’s law and your specific facts, including the downside. A lawyer who promises a specific favorable outcome before discovery is complete, custody evaluations are done, or the other side has even responded, is telling you what you want to hear, not what is knowable.
A bad answer sounds like. Don’t worry, I’ll get you full custody and he’ll pay for everything.
Why it matters. A lawyer who only ever describes your case’s strengths, and never its risks, is either not analyzing it honestly or is managing your emotions rather than your legal strategy. You need someone willing to tell you uncomfortable things before a judge does.
A bad answer sounds like. You don’t have any weaknesses in this case, your spouse is completely in the wrong.
Why it matters. This sets expectations before you’re relying on fast answers during a live dispute, and a specific answer here tends to correlate with a firm that has real processes rather than ad hoc responsiveness.
A bad answer sounds like. I’ll get to you whenever I get to you.
Fee shifting
Why it matters. Many states allow fee-shifting, particularly where there is a significant income disparity or where one spouse controls the marital funds and is effectively preventing the other from affording a lawyer. This can be requested early, as part of temporary orders, not only at the end of the case.
A bad answer sounds like. That never happens, don’t even ask the court.
Why it matters. Fee-shifting can run in either direction depending on the state and the outcome. Understanding the mechanism, and the risk, before you rely on it as a financial plan matters.
A bad answer sounds like. You won’t have to worry about that.
Why it matters. Fee-shifting statutes exist in most states but courts don’t grant every request; a lawyer’s track record on actually getting fees awarded (versus just knowing the statute exists) tells you how realistic it is to count on.
A bad answer sounds like. It always works out, courts love awarding fees.
Due diligence you can do yourself
Why it matters. Every state bar maintains a free, public lookup that shows whether an attorney is licensed, in good standing, or has any public discipline on record. This takes minutes and costs nothing, and it is worth doing before signing any fee agreement.
A bad answer sounds like.