Tennessee Divorce Costs: Where the Money Goes

From The Mid-South Divorce Guide, chapters 4 through 18, by
William W. Jones IV, a Memphis family law attorney and Rule 31 Listed
Family Mediator licensed in Tennessee and Mississippi. This guide covers
Shelby, Tipton and Fayette Counties in Tennessee and DeSoto, Tate and
Tunica Counties in Mississippi.

Questions this page answers

• How much does a divorce cost in Tennessee?
• Why are divorce lawyers so expensive?
• Can my spouse be ordered to pay my attorney’s fees?
• How much is a divorce retainer in Memphis?

What Divorce Costs and Why

There is a moment most clients have, and it lands somewhere around
the second retainer replenishment. They are sitting with a statement,
working backward through it, and at some point they hear themselves say
out loud that they spent eleven thousand dollars on a boat.

Nobody decides to do that. What happens is that a divorce gets bought
in twelve minute increments and gets paid for in lump sums, and there is
no point in the middle where anybody stops, adds up what one particular
argument has cost so far, and holds that number up next to the thing
being argued about.

That number is knowable. It is just that in most offices nobody runs
it, because running it is not billable and because clients do not
ask.

So this chapter is that number, in advance, before you have spent
it.

Why the meter runs

Abraham Lincoln is supposed to have written that a lawyer’s time and
advice are his stock in trade. That is the whole business in one
sentence.

I do not have inventory. I do not have a product on a shelf. I have
hours, and when they are gone they are gone. So if I accept
representation on your case and I am working on your case, any instant I
spend on it is billable. Reading your email is billable. Thinking about
your case in the shower is not, but drafting the letter that came out of
that thinking is. The same is true of every attorney who bills by the
hour, whether or not they say it out loud.

I tell people this on the front end because it changes how they use
me, and using me well saves them money. Save your questions up. Send one
email on Friday with twenty questions instead of twenty emails with one
question each. Bring your documents organized. Answer discovery completely
the first time. None of that is me dodging you. It is me not charging
you three times for the same task.

Where the money
actually goes, month by month

No divorce bill I have ever sent spent evenly, and the shape is close
enough to the same every time that you can plan against it.

The first two months are cheap and feel expensive. Drafting, filing,
service, a first round of paper. You are paying a couple thousand
dollars for documents you might have written yourself if you knew how,
and this is the stretch where clients most often decide privately that
they are being overcharged.

Months three through six are where the money is, and hardly any of it
happens in a courtroom. This is the stretch where every fact in your
case gets established three separate times. Once so that I know it. Once
in a form the other side cannot dispute. And once in a form a judge
could accept if it came to that. The same bank account gets worked three
different ways by three different people, and you are paying for all
three passes, and not one of them produces a decision about anything. It
is the least satisfying money in the case and it is the money that wins
cases.

Somewhere around month seven or eight comes mediation, which lands
as one uncomfortable number on one day and is very often the best value
in the entire file. See Chapter 10.

After that the line does one of two things. It flattens out, because
you settled and the rest is paperwork. Or it goes vertical, because a
trial has to be built, and building one is a different order of expense
than everything before it.

I lay it out this way for one reason. The expensive part is in the
middle, and the middle is exactly when people stop reading their
invoices.

The three-tier forecast

Here is how I explain it to a new client.

Tier one. The case settles early because both sides are reasonable
and the facts are not complicated, and you get money back.

Now let me be honest with you about tier one, because I do not want
to sell you something that rarely arrives. Tier one is uncommon.
Sometimes the estimate lands exactly and you spend what we thought you
would spend. More often what happens is that people are volatile at the
beginning, and understandably so, and it takes a while before either
side can sit down and agree to anything. The reasonable version of your
spouse usually shows up eventually. It just does not show up in month
one. So plan for tier two and be pleasantly surprised by tier one.

Tier two. The case goes to mediation and settles there. You spend
roughly what you put down, maybe a little more. This is where most cases
land.

Tier three. The case tries. Your retainer was the first of several
payments, and this is where the numbers get uncomfortable.

Most divorces settle. That is not lawyer talk to soften you up, it is
just what the numbers say. Plan your budget around tier two and treat a
trial as the contingency it actually is.

Who pays for this

Start with the version of this that has an actual legal remedy
attached to it.

Tennessee does not require you to have money in order to have a
lawyer.

Where one spouse holds the accounts and the other does not, a court
can order the moneyed spouse to fund the other side’s representation,
and it can do so while the case is still running rather than at the end
of it. The reasoning has nothing to do with generosity. A marriage in
which one person can outspend the other into accepting whatever is
offered does not produce a negotiation, and judges who have watched that
happen are unsympathetic to the spouse doing it. What matters
practically is timing, because this request belongs near the front of a
case and gets weaker every month it waits. See Chapter 18.

Past that, here is something clients are almost never told.

A divorce has thirty or forty points in it where two roads were open
and one got taken. Almost none of them are dramatic. They are decisions
about whether a hearing gets set this month or next, whether we write
the order or let the other side write it, whether a letter gets answered
at all. Each takes a lawyer about ninety seconds at a desk, alone, and
together they build your entire bill.

Ask to be told about the forks. Not to make the calls, because making
those calls is what you hired somebody to do. Just to know a fork was
there and roughly what each road ran, so that the number at the end of
the year is arithmetic you watched happen instead of a bill that
arrived. A lawyer who will not do that is managing you rather than
representing you.

One thing about timing, since we are on the subject of forks. A fee
arrangement is a document that can be amended, and amending one is a
normal piece of office business right up until there is a trial date on
the calendar. After that it stops being a negotiation and becomes a
problem, because a lawyer who is sixty days from trial cannot
restructure anything and cannot leave either. Whatever you are going to
ask about money, the calendar is what decides how the asking goes.

When a bill surprises you

A surprising invoice is almost always a scope change nobody
announced.

Something entered the month that was not in the plan. Your spouse
filed a motion. A deposition got set. An expert had to be retained on
eleven days notice. The work was probably necessary and the number is
probably right, and none of that helps you, because you were budgeting
against a case that quietly stopped existing three weeks ago.

So the question to bring is not whether the hours are accurate. It is
what changed. Asked that way you will have a useful answer in four
minutes. Asked the other way you will get a defense of the invoice,
which is the least interesting document either of you has ever read.

Attorney’s Fees

The American rule is that everybody pays their own lawyer. Family law
has significant exceptions.

Fees as alimony in solido

In the divorce itself, a Tennessee court can award attorney’s fees to
an economically disadvantaged spouse as alimony in
solido, based on the same need and ability to pay analysis that
governs alimony generally.

This matters enormously if your spouse controls the money. If you are
the spouse with no access to funds, ask your lawyer about seeking fees
early, including an interim award to fund the litigation itself. A
spouse who can starve the other side of legal representation has an
enormous and unfair advantage, and courts know it.

Fees under section
36-5-103(c)

Tennessee Code Annotated section 36-5-103(c) provides that a
prevailing party may recover reasonable attorney’s fees, in the court’s
discretion, from the non-prevailing party in contempt actions and in
proceedings to enforce, alter, change, or modify a decree of alimony,
child support, or a permanent
parenting plan, and in actions concerning custody or change of
custody.

Read that carefully, because it covers most of what happens after
your divorce is final. Enforcement, modification, custody disputes. If
you file a post-decree action and lose, you can be ordered to pay the
other side’s lawyer.

That cuts both ways, and it is one of the better tools in family law.
It gives the parent who is being dragged back into court over nothing a
real remedy, and it makes the parent who wants to file over nothing
think twice.

Fees as a property division
factor

Separately, section 36-4-121 includes as a property division factor
each party’s total attorney’s fees and expenses paid, whether from marital
property, separate
property, or borrowed funds, and the reasonableness and necessity of
those fees. So a spouse who ran up enormous fees litigating things that
did not need litigating may see that reflected in the division.

What this means for you

Do not assume the other side will pay your fees. Judges award fees in
their discretion, and discretion means it may not happen.

But do tell your lawyer early if you cannot fund the case while your
spouse can. There are remedies, and they work better when they are
requested early rather than at the end.

Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)

Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.