Law Students

What to Do When Divorcing But You Can?t Afford a Lawyer

By C. C.

My name is Linda. I am 40 years old. I have been married to my current husband for 15 years now, but we have recently agreed to separate and file for divorce. I intend to make sure that my interests are adequately represented in the proceedings so that I can get my just share of our conjugal assets. Unfortunately, I am afraid that I might not have enough financial resources to pay for a solicitor to represent me because all my assets are held in our home and family business that we operated together. I don?t want to take out a loan. Are there other options that I can pursue to have money to pay the solicitor?

According to Brookman Solicitors founding partner Henry Brookman, it appears clearly that Linda?s husband exercises economic control over the marriage. This is dangerous assertion, as it makes Linda believe that she has no power to demand for divorce terms other than the settlement that her husband is offering.

What Linda doesn?t know is that her husband is legally obligated to support her. Such support, given the circumstances, necessarily includes paying her solicitor fees.

The courts have time and again emphasized that equal access to justice covers the requirement that every party to a controversy must be given proper representation.

To enjoy this legal right, Linda has to provide the court with evidence to show that she has no financial capacity to pay her legal fees, and that she no other reliable source of income or funds such as the possibility of contracting a litigation loan.

This may entail exhibiting before the courts that Linda is unable to meet the repayments for a previous loan as they fall due, or that she stands to lose her house to creditors?indications that any litigation lender is not likely to approve her loan application, if she decided to apply.

If the court finds sufficient evidence to prove that Linda has no sufficient resources, it can issue an order for the husband to provide maintenance pending suit. By virtue of this order, Linda can be assured that her husband will pay for the proceedings, including solicitor fees, until the divorce decree is granted.

These orders are typically enforced through installment payments, although they can also be required to be paid by straight lump sum.

The court is free to take the actual costs into consideration at the final hearing for the purpose of reconciling them and making sure that both Linda and her husband have been paid their own costs.

Aside from requesting the court for a maintenance order, there are no other reasonable options available for Linda. Solicitors may be public servants, but they are not allowed to render their services based on a ?no win, no fee? when it comes to divorce proceedings.

Sometimes, though, law firms may agree to work and put off billing until the settlement has been paid. Unfortunately, law firms are now required to remit taxes while they perform the service. This means the solicitor will have to shoulder their taxes themselves, which they are unlikely to agree to do.

Based on her account, it also appears that Linda could be ineligible to receive legal aid because she owns business assets. In case she does qualify, it is also highly unlikely that any solicitor will agree to work for her given that the legal aid rates are incredible low.

If Linda?s joint business with her husband is not substantial, then Linda may explore the option of securing a litigation loan from certain banks that offer them.

The first step that Linda should take is consult with her solicitor to discuss possible options for financing the litigation. In which case, she may need to raise the money to pay for the initial interview.

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• Lawyer Fee Charging Methods: Hourly, Fixed & Contingency

Full post as published by Law Vibe on March 18, 2010 (boomark / email).