Retainer fees and attorney fee cost estimates can be a top concern for many potential new clients. They can often cause anxiety for many people going through the family law process. In this episode, Brian Walters and Jake Gilbreath discuss how Walters Gilbreath’s billing structure works depending on the type of case and the conflicts and complexities involved. Jake and Brian also explain the Case Budget Calculator feature on Walters Gilbreath’s website and how it can help provide transparency and lessen the strain in understanding case costs.
The Walters Gilbreath team believes your case’s costs shouldn’t be a mystery. Our experience has shown us that clients want a good product and are willing to pay for top-quality legal service, but understandably, clients also expect to know what they are paying for. Our firm communicates constantly about costs and what to expect moving forward. Schedule a consultation with one of our partners to see if we are the right fit for you. If there is a topic you would like to hear on our podcast, email us.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters: Thanks for tuning into the For Better, Worse, or Divorce podcast where we provide you tips and insights on how to navigate your divorce and child custody situations. I’m Brian Walters, one of the two managing partners here at Walters Gilbreath. I’m joined by Jake Gilbert, managing partner at the firm and we’re going to discuss estimating cost and length of your legal case. We have a feature on our website that helps you do that, but we’ll talk a little bit today about how we calculate those things.
Just so you understand the case budget calculator, this is trying to get a dollar estimate of how much your case is going to cost. We also have a length estimator, because I don’t know about you Jake, but it seems like every single consultation I do, I get asked how much is this going to cost and how long is it going to take, which is a totally rational thing to do. I’d be asking that if I was talking with a lawyer. Is that something you run across very often, by the way?
Jake Gilbreath:Absolutely. It’s no different than if I was going to do a remodel on my house or build a pool or something. It seems like a logical question would be how much does this cost and how much is it going to take? For those of you listening, Brian and I are both smiling because not only do I get that question a lot, or I’d bring it up in the consult – but I would say for folks that have talked to other law firms or other lawyers, what I always hear consistently from them is: I asked the other law firm or I ask the other lawyer and they wouldn’t even give me an estimate.
All the clients I talked to, by the way, or potential clients, they know it’s an estimate. They know that it’s just based on the information that we have right now. They know it may change. They know that stuff will come up. It is shocking, well it’s not shocking anymore because it happens all the time. Everybody comes to us and says “I asked the other law firm and they hemmed, and they hawed. They wouldn’t tell me anything. They wouldn’t tell me about any estimates at all or any ranges.” Then people are kind of shocked when they see that not only do Brian, myself, and the other partners at our firm regularly talk about that in consults, but it’s on our website. That’s how important it is to us to have that discussion with clients.
Brian Walters:Yeah, I agree. As far as I can tell, we’re the only divorce or family law firm in the state maybe broader than that but let me just say the state that provides anything like that. That link will be below in the show notes. Let me also say that before we begin the budget of how much it’s going to cost is very closely related to how long it’s going to take.
They’re basically the same analysis because they’re based on essentially three factors. Those three factors are the type of case that you have, how complex your case is, and how much conflict there is in your case. We’ll come back and talk about each one of these in detail. We’ve put together a formula based on those three factors, which you’ll have to tell us, either on the website or in a consult. Then from there we can estimate how things are going to go.
For example, is it a divorce with children, a divorce without children, or is it just a modification? And the complexity, which is how many issues are there in your case and how complex are those issues? So for example if you have a divorce and you guys just have a house and two 401Ks and two cars to divide, it’s all community property. That’s probably low complexity and won’t cost that much and take that long to deal with.
But for example if you have a very large family business, a lot of separate property, these kinds of things, then those are much more complex and will take more time and money to get sorted out, most of the time. Lastly, and probably the most important factor in the cost, complex and length of a case, is the conflict level. In other words, how much fighting is there going to be? The Jeff Bezos divorce, the Bill Gates divorce they could have been extraordinarily complex with hundreds of billions of dollars at stake. They both were resolved quickly and quietly because they had low conflict that overwrote everything else.
Let’s talk about each one of those types of things. We break the case types into basically five types of cases. There’s a divorce with kids and a divorce without kids. There’s original child custody case, so two parents who are not married and have it for the first time they’re in court. The fourth category is the modification of custody. This could be after a divorce or after just a regular child custody case. Five years afterwards some issue comes up about custody or child support or something like that.
The last category is an enforcement. That is where someone is being accused of or is violating a court order and somebody wants to punish them for that and make sure that doesn’t happen again. There are different types of cases, appeals, smaller things, but those are the big five. So Jake, if you were to think about these types of cases, which one of those do you think would be sort of the most or the least expensive and lengthy to deal with?
Jake Gilbreath: Obviously, that’s a big caveat, it depends. Every single situation’s different. Enforcements are straightforward, particularly if it’s child support or possession access and governed by chapter 157 of the family code because family code says those hearings can and probably should take place within 10 days of filing.
Having said that, I have an enforcement that’s very complex. Post-property, post-decree property issues, a dispute over what a partition agreement means. A partition agreement that probably could be clearer, that was not drafted by us. We weren’t the lawyers on it, but we’re litigating what it means. Obviously, there are lots of funds at stake and that one’s taken quite a bit of time. That one is unique, but usually enforcements are going to be straightforward because it’s just a question of did or did not somebody violate the order? That’s rarely in dispute whether or not they did it. Then are there any affirmative defenses and what’s the remedy for it? That’s going to be your most straightforward one typically.
The most complex is usually going to be divorce kids, but every single situation’s different. I usually tell people in consults that it depends on what you’re fighting over, and if you’re fighting. Some people come to us, and they have all their kid issues worked out but they have an interesting complex divorce, maybe a business valuation or something like that.
Then on the flip side, sometimes people have their property sorted out or there’s nothing that difficult about the property, but they just fight like cats and dogs on the kids, or somebody does, right? Somebody is toxic on one side and the parents have to deal with it and that can obviously drive up the cost. Then for some people, it’s property, it’s kids, it’s everything. A lot of times when you have a spouse with a mental health issue, or somebody with borderline personality disorder on one side or both, somebody that just sees conflict in everything. Then those can be the most difficult, the most expensive, and frankly it requires the best lawyers dealing with. We’ve talked about that in prior series before.
Brian Walters: Yeah, I agree. And the second category is case complexity, which to some extent overlays the case type. And in our formula we’ve sort of emphasized the case complexity a little more than the case type because of this. So for example, by definition a divorce with children, and I’m talking about children under the age of 18, is going to be more complex than the identical situation where they don’t have kids. So if two people get divorced with a 16-year-old, that’s always going to be more complex than if they get divorced four years later when they have a 20-year-old.
You’re required to put certain things into a divorce decree when you have minor children. You’ve got to negotiate and deal with child support, decision making, visitation. Even if you have it worked out, it’s still more complex than if you otherwise would.
We’ve got a special category of extremely high complexity, I passed over it very briefly. Jake, what would you give as an example of some types of cases, or maybe components of cases that tend to be very, very complex that are in that extra high level?
Jake Gilbreath: I think business valuation on the property side. You can have a valuation dispute. Usually it’s high complexity and a big dispute. You can have absent, maybe fraud claims, some dovetail and some various reimbursement or waste claims. Those can be expensive and complex, depending on the nature of the fraud or the legal remedies for the fraud. But really it’s going to be business valuations or property valuations and there’s disputes on that. I would say that sometimes you can even have good faith disputes that can drive numbers seven figures apart between the two sides.
For example, if you think about a separate property trace, which can be complex or complex work for the experts. Ultimately a trace and the math/data entry is what it is. Maybe somebody messed it up. We’ve had those cases where the other side’s experts messed it up and we’ve gone in and busted a trace. But a trace is what it is, assuming everybody has the documents.
But a business valuation, you could have one spouse’s expert say the business is worth $10 million and the other spouse’s expert say it’s worth $0, or $100,000. I’ve seen them, we’ve both seen them. Seven or eight figures apart where the experts are. That’s complex and frankly it’s probably worth having a discussion about which may lead to litigation. If you’re $10 million apart, $5 million apart or even $500,000 apart on the property side, that can be complex.
On the child custody side, of course who has custody – that can make it very complex. But really the most complex would be either drugs or alcohol, dealing with addiction issues, or dealing with somebody trying to move. Those are both very difficult issues to deal with and they push people to litigation. Litigation makes things complex.
If one spouse has a drug or alcohol addiction, or a horrible personality disorder that’s going to drive you to conflict. If somebody wants to move, that’s going to drive you to litigation because there’s not really a middle ground. If the wife wants to move to New York with the kids, and the husband wants everybody to stay in the Houston area, that’s not really a compromise. You can’t pick a state in between. So those can be very complex and push you to court.
Brian Walters: Yeah, I agree. Then the last factor that I think is the most important is the level of conflict. So, basically, how much fighting is there going to be? I think it’s both the most difficult and it’s the most important, but also the most difficult to predict for a couple of reasons.
One is that it’s a moving target. You may have a case that starts out as high complexity, then six months into it everybody just sits down and works things out. I think it is also difficult to predict how much conflict there’s going to be. I think sometimes, especially the person beginning a divorce, I think they will often underestimate the amount of conflict. The person who’s already gone through the mental process of exiting the relationship is thinking, “Oh, I’m past it, now let’s just divide everything and go our separate ways.”
Usually there is somebody who’s quicker to exit than the other, so the person who’s left behind may not see it that way. That may cause conflict.
In defense of the lawyers who won’t give you any information about expense or length of time, that’s probably their biggest concern, is we don’t know how much conflict there’s going to be. But we can talk about it, and we can get an estimate. I will often have folks come in and say, “I think it’ll be low conflict.” I then tell them, “Well, you might be in for an unpleasant surprise.” So what has your experience been with trying to guesstimate the conflict level?
Jake Gilbreath: I’m like you, I can usually tell either by what the potential client’s telling me his or her position is, or as they’re describing their spouse. I get it, we always want to encourage people to try to remain low conflict. I tell people routinely in consults that on some of my most complex difficult cases if there’s a good lawyer on the other side, a lot of times we’ll go to mediation right away. We try to head off what could potentially be a really high conflict, high complexity, case and try to nip it in the bud.
All good lawyers are going to try to keep your case low conflict. There are just some cases where that’s just not going to happen, or you have strong feelings that that’s not going to happen. Either because of the complexity, there’s just not a middle ground that can be readily ascertained. Or you can start to pick up on the personality disorders and you can start to pick up that the other side is just going to be entrenched. Or even by the way that they’ve conducted themselves through the marriage, you can kind of tell how they’re going to behave through the litigation.
I think I’ve mentioned in prior episodes, but when I was a young associate and when I was working for Jim Piper, who works with us now. Jim used to always tell people, why would you expect your spouse to behave differently in the divorce than he or she behaved during your marriage? And that’s often the case, right? So you start hearing those stories of conflict, people being entrenched, maybe having a bit of a personality disorder, or they see the world only their way. Sometimes you can tell with the lawyer on the other side, especially if he or she tends to try to keep their cases low conflict.
Unfortunately, there are times when you see the lawyer on the other side, and you can just tell it’s going to be high conflict. That’s unfortunate because we should not be. Lawyers should not be a factor in driving conflict, but sometimes particular lawyers are. That’s all the information on why it’s important to both use the case cost and estimator calculator, which I think is really helpful and it’s a good starting point. But really that initial consultation with myself, Brian, or one of our partners will add to it and help us drill down to really get that more accurate, still an estimate, but more accurate estimate for you when you’re deciding what to do moving forward.
Brian Walters:Before we wrap up let’s just kind of give some ranges since we’re talking about how we’re giving numbers. My experience with the cost of things is that the simplest case that everybody’s agreed on, low complexity, simple type of case with a competent lawyer, even in those cases I think it’s difficult to do it for $2,500. I don’t really know how you do that.
You have to pay a filing fee. The other side typically is going to get a lawyer and they’re going to have edits or something. So to me it’s probably $5,000, which is on the very lowest end of the simplest cases. What about the lowest timeframe? If on the simplest case how long do you think we’d be looking at, timewise? From the time someone hires us to the time when the judge says, “All right, approved, you’re done, I’m going to sign your order.”
Jake Gilbreath: If it’s a divorce the minimum is going to be 60 days, except for on the rarest of exceptions when the family court provides that there’s a protective order, then you can do it in less than 60 days. But really, it’s going to be 60 days for a divorce and that’s if everybody’s talked about it and we are on the same page, or we’re going to get there really quickly. That’s usually the quickest on a divorce. It’s kind of the gold standard when people come in and say, “We’re all agreed, everything’s worked out.” I tell people that’s the gold standard. If you can get it all worked out, get something signed and filed of what the agreement is before the 60th day. You’ve got a divorce decree drafted and it’s ready to go to get signed by a judge, after what we call prove up.
Child custody cases, you can agree right away. That’s usually going to be when people have discussed it, work through it with therapy, co-parenting, counseling or something. They’re coming in saying this is what we’re doing, and we just need the lawyers’ help drafting it. Then that can be done in a month or less. Pretty rare, but certainly doable.
Like I said, we want to encourage people to have low conflict. A lot of times it’s not an option, or they’re coming to us because it was started as low conflict and now it’s gotten complex and they’re coming to us.
But that’s going to be your basic and simple case. We’re coming in to basically draft paperwork or we’re helping a little bit with advice and we’re guiding people to a quick settlement.
Brian Walters: And then sort of the midpoint, again it varies a lot, but a medium complexity case with medium conflict, let’s say that type of case. In my experience the cost is probably going to be somewhere between $10,000 and $20,000. There’s probably going to be some points of conflict, maybe higher than that. For example, a divorce with kids might make it higher than that. That’s been my experience with it. What are your thoughts about the timeframe that we’d be looking at for a medium complexity and medium conflict type case?
Jake Gilbreath:The way I describe those cases is I usually tell people this statement: Let’s say both sides have lawyers and let’s say they both have good lawyers. There’s an exchange of information not totally on the same page of what we all have. We don’t totally have the same information. So you go through a little bit of discovery, a little bit of back and forth. Maybe get a house appraised or something and then go to mediation. Typically, depending on the county that you’re in, you’re looking around three to six months, maybe a little bit longer depending on schedules and mediator schedules and stuff. Typically three to six months. Maybe up to nine months, just depending on what needs to be appraised or information exchanged. That’s kind of a low key, moderate key, divorce.
It’s the same for child custody. There’s a little bit of discovery back and forth, then pulling out calendars and going to mediation. That’s the timeframe that you’re looking at.
Brian Walters:Yeah, I agree. And I should be clear about the cost estimate. What I’m talking about here and what’s on our website would be one side’s cost, not the total cost.
Now let’s talk about the worst-case scenario. Everything’s just on fire. Divorce with kids, there’s a custody battle, there’s some mental health issues, maybe on one side, substance abuse on the other. You’ve got a business to value, hard feelings, high emotions, all of that type of stuff. My experience is you’re starting at $100,000 per side, and probably going to go higher than that. Potentially much higher than that if the fire doesn’t go out and the conflict doesn’t go down.
My experience with it is that it is unfortunate. It’s a small percentage of cases, but they’re out there. Those are cases I think most rational people would like to avoid, but sometimes circumstances find people in those situations, for whatever reason. What about the timeframe for something like that, like a really, really complex difficult divorce with kids?
Jake Gilbreath: Well, it depends on your county. As far as the really high conflict ones, going to court probably is not going to take that long because you’re probably going to be in there on temporary orders. Remember, those are the orders that are in place while a case is pending. You’ll probably be taking multiple trips down there on discovery disputes or things that come up or what have you.
When there’s substance abuse, a personality disorder, or sometimes it’s just a good faith dispute over the value of a business or something. But a lot of times somebody’s dealing with a spouse with a personality disorder and you’re just back and back and back to court. Those can take well over a year, easily. Even in the more rapidly moving counties in the state, a really complex divorce with kid issues and stuff, could easily take over a year.
Sometimes it’s just waiting on the experts and the business valuations. We hire the best experts in the state on our cases, we know who they are, we work with them, and we encourage our clients to hire them. But part of being the best means that you have multiple cases that the experts are dealing with. So a lot of times the lawyers are waiting. Maybe there’s kid stuff going on while the case is pending, but we really can’t get the divorce resolved until the experts come back with their valuations. Which could or could not lead into a whole different mess of worms, depending on what the experts say. So well over a year.
I guess it’s important to point out when we say numbers like $100,000 and over a year and stuff like that, that’s really not to give everybody a heart attack. That’s just to let people know that’s out there. No different than a remodel, getting something fixed or if your AC goes out. Somebody needs to tell you what it is. You don’t want your AC repairman or a woman coming in and saying, “Hey, this is, don’t worry, I’ll be done, have it replaced tomorrow, it’ll be $500 bucks.” And then three weeks later you’re still waiting on it to get repaired and it’s a $10,000 bill. That sounds like a good way to have an unhappy consumer.
Our experience is that people want to be told what it could be. Again, it’s an estimate and hopefully when we do the gloom and doom and say it could be over $100,000 it could be over a year, hopefully that’s not your situation, but we do need to have those conversations.
Brian Walters:Absolutely. It’s interesting when you tell people that, kind of the bad news and give them numbers, a lot of them are like, “okay.” It’s actually less bad than many of them had thought it might be. There are a lot of horror stories out there, some of them true. And some that make people think it’s going to be something out of “War of the Roses”, out of a movie or something. And most of them are not.
Jake Gilbreath: I would say all things when coming to divorce, child custody or really the legal scenario, my observation is that it’s really anxiety producing, understandably so. A lot of it is because you don’t know what’s going on, it’s your first divorce or your first child custody case. A lot of times that’s combined with Googling and reading horror stories. For example, anytime my child has a medical condition I Google every single thing that it could possibly be. And of course I locate the most dire, horrible things it could be which produces a great deal of anxiety. Then when you talk to the doctor, she sort of goes through what it’s going to be and what it looks like, knowing kind of what it looks like in the future. Again, a prediction, but knowing can really help with anxiety.
So it goes back to kind of how we started the episode, right Brian? When these clients can tell when you’re avoiding the question. We’re not as talented as we think we are at avoiding the question or giving some spin on it. They want to know what our opinion is on it and if I give you a vague answer, a non-committal answer or no answer, that’s worse. That sounds way worse to me than somebody actually telling me what it could be.
Brian Walters: Yeah, I agree. All right, well, that’s all we have for today. If you like what you’ve heard today, do us a favor and leave us a review. We appreciate any feedback that you give us because it helps us make the podcast better. If you have any questions, reach out to us at email@example.com. I’m Brian Walters, joined by my law partner, Jay Gilbreath. Thanks for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed, or a question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening. Until next time.