Whether you are the plaintiff or the defendant in a divorce case, the Probate and Family Court can order your spouse to pay a retainer fee for an attorney for you in a divorce case. Chapter 208, section 17 of the General Laws says: “The court may require either party to pay into court for the use of the other party during the pendency of the action [for divorce] an amount to enable him to maintain or defend the action.”
What is a retainer?
A retainer is an amount of money that an attorney may require a client to pay in advance in order for the attorney to begin work on the case. The attorney then uses this money to pay for the services he or she provides and for legal costs and expenses. The attorney may require that the client pay additional money for his or her fees as the case proceeds.
When should you ask the Court to order that your spouse pay an attorney’s retainer for you?
You will need to prove to the Court that you do not have enough money to pay the retainer for a lawyer and also that your spouse does have enough income or assets to pay for the retainer. Both you and your spouse will have to file a financial statement which states all your income, expenses, and assets. The Court will look at the financial statements to determine whether or not to order your spouse to pay the retainer fee for an attorney for you.
The following forms are used to obtain an attorney’s retainer order:
INSTRUCTIONS FOR COMPLETING THE FORMS
COMPLETE the “PLAINTIFF’S MOTION TO ORDER DEFENDANT TO PAY A REASONABLE AMOUNT TOWARD PLAINTIFF’S COST OF RETAINING AN ATTORNEY” or the “DEFENDANT’S MOTION TO ORDER PLAINTIFF TO PAY A REASONABLE AMOUNT TOWARD DEFENDANT’S COST OF RETAINING AN ATTORNEY”
1. Print the name of the county where the case is filed in the top line of the MOTION.
2. Print the docket number of your case if you know it.
3. If you are filing the divorce, you are the Plaintiff. Print your name where it says Plaintiff. Print your spouse’s name where it says Defendant.
If your spouse filed the divorce, you are the Defendant. Print your spouse’s name where it says Plaintiff. Print your name where it says Defendant
4. Print your name after the word “I” in the first sentence of the MOTION.
5. In Paragraph no. 4 of the MOTION, check all the issues that you think there may be a disagreement between you and your spouse. This will let the Court know how many issues may have to be decided by the Court.
6. In Paragraph no. 7 of the MOTION, write the amount of money that you need to pay a retainer. If you have already talked to an attorney and he or she told you what the retainer will be, you should write that amount. If you don’t know how much you will need, cross out the words “$ , or in the alternative”.
7. After the words, “I ask that this honorable Court order the Defendant [or Plaintiff] to pay into the Court the sum of”, write the amount of the retainer fee that you requested in Paragraph no. 7, if you put an amount there.
8. If you are the Defendant and have not filed an Answer to the Complaint for Divorce, check both boxes after the words, “I ask that this honorable Court.”
9. Sign your name and then print your name; address and telephone number. If your address and phone number are impounded, write “Impounded.”
10. Arrange a date (by speaking to the appropriate clerk) for a hearing on your MOTION. You will complete the Certificate of Service/Notice of Hearing after you get a hearing date from the clerk.
11. After you get the hearing date complete the CERTIFICATE OF SERVICE and NOTICE OF MOTION section of the MOTION.
a. Print your spouse’s name and address where indicated. If your spouse has an attorney, write the name and address of the attorney, not your spouse’s name and address.
b. Write the date, time, and name of the city/town where the hearing will take place.
c. Sign and date the CERTIFICATE OF SERVICE with the date that you mail the MOTION to your spouse or the attorney.
COMPLETE THE “ORDER FOR COSTS TO RETAIN AN ATTORNEY” FORM
Fill in the name of the county, docket number, plaintiff and defendant as you did on the Motion. The Judge will fill in the rest after the hearing.
COMPLETE A FINANCIAL STATEMENT
This is a very important document which you will sign swearing that it is true. It is important that it is accurate. Take time to get all the relevant documents and make sure it is filled out accurately. Your Financial Statement may be used many times during the divorce proceedings, so you want to make sure that you fill it out correctly.
The Register’s Office may have printed instructions about how to fill out the Financial Statement. Ask a clerk if they have those instructions. Also, the Probate and Family Court has posted Instructions for Filling Out the Short Form Financial Statement at its website
FILE THE DOCUMENTS AND MAIL COPIES
1. Before you file the documents with the Court, make two copies of each document, one for your records and one to send to your spouse or his/her attorney.
2. File the original documents with the Court. The Court staff will explain how to get a hearing for your Motion. After you get the hearing date, fill in the bottom section of your Motion, the date and time when the hearing will be.
3. Mail a copy of your MOTION, ORDER, and completed FINANCIAL STATEMENT and a blank FINANCIAL STATEMENT form to your spouse or his/her attorney. Before you mail these copies, make sure that the bottom section of the MOTION has the date, time, and place of the hearing and that you sign and date it with the date that you mail the documents.
ON THE DAY OF THE HEARING GO TO THE ASSIGNED COURTROOM AND BE PREPARED TO TELL THE JUDGE WHY YOU NEED AN ORDER FOR A RETAINER
These Instructions and Forms were produced by Greater Boston Legal Services and Massachusetts Law Reform Institute, with the support and approval of the Chief Justice of the Probate and Family Court.
Produced by Massachusetts Law Reform Institute and Greater Boston Legal Services Created July, 2006