By Neta, founder of SortMyDivorce · Updated
It is signed in the first meeting, when you are least equipped to read it, and it governs everything that follows.
| The most consequential term | The billing increment. Six minutes versus fifteen changes your total materially. |
|---|---|
| Second most | Who may work on your file, and at what rate. |
| Written retainer required? | In the US, Rule 1.5(b) requires the basis of the fee to be communicated, preferably in writing. In New York domestic relations matters a written retainer is mandatory. |
| New York extras | Itemised bills at least every 60 days, and you "may not be charged for time spent in discussion of the bills received." |
| Contingency fees | Generally prohibited in divorce. Model Rule 1.5(d)(1). |
| What to ask before signing | The increment, the rounding policy, delegation, the replenishment trigger, and the estimate to the next stage. |
| You can negotiate it | Retainers are contracts, not statutes. |
Keeping track of dates like these across a stack of letters is exactly what SortMyDivorce does — start a free trial, no card needed.
People compare lawyers on hourly rate. The rate is only one of three numbers that determine what you pay, and it is the one most likely to be similar between firms in the same city.
The other two are who does the work and how time is counted — and both are set in the retainer agreement, usually without discussion.
Almost all family work is billed in increments, and each discrete task is rounded up to at least one. The two common ones are a tenth of an hour — six minutes — and a quarter of an hour, fifteen minutes.
On a quarter-hour increment, a ninety-second email is billed as fifteen minutes. Twenty short emails in a month is five hours. That is five hours of billing, at whatever your rate is, for correspondence that took under an hour to write and read.
Find the increment in your retainer. If it is not stated, that is itself worth raising — ask what it is and ask for it to be written in. A tenth of an hour is more favourable to you than a quarter and is common.
Also ask about rounding on a single continuous task. Some firms round the total for a task; some round each component. It matters.
Most firms bill partners, associates and paralegals or law clerks at different rates, and the retainer should list them.
Two questions worth asking at signing:
"Who will actually be doing the day-to-day work on my file?" The partner you are meeting is often not the person drafting your correspondence, and that is usually fine — but you should know.
"Which tasks can be handled at the lower rate?" Document collation, bundle preparation, chasing third parties, routine registry correspondence. Establishing this expectation at the start is far easier than raising it after three invoices.
Scope. What the retainer covers and what it does not. Does it include the whole matter, or a stage? Does it cover a trial? Appeals? Enforcement afterwards?
Disbursements. Which third-party costs you will be charged for, and confirmation they are passed through at cost. Ask specifically whether anything carries an administrative markup.
The replenishment trigger. Most retainers require you to top up when the account falls below a threshold. Know the number and the notice period, so it does not arrive as a demand at a bad moment.
Billing frequency. How often you will receive an invoice. Monthly is standard. In New York, domestic relations rules require itemised bills at least every 60 days.
What happens if you do not pay. Firms generally reserve the right to stop acting. Know the terms before you are in a dispute about a bill.
Termination. How either side ends the relationship, what happens to money on account, and how the file is transferred.
Fee disputes. Where they go. New York's rules require the retainer to address fee arbitration availability. Elsewhere, it is worth asking.
In the United States, ABA Model Rule 1.5(b) — adopted in some form by every state — provides that where a lawyer has not regularly represented you, the basis or rate of the fee, the scope of the representation and the expenses you are responsible for must be communicated to you, preferably in writing, before or within a reasonable time after starting work.
Rule 1.5(a) requires the fee to be reasonable, judged against factors including time and labour, difficulty, the customary local fee, the amount involved and result obtained, and the lawyer's experience and ability.
Rule 1.5(d)(1) prohibits a fee contingent on securing a divorce, or on the amount of alimony, support or property settlement. If someone offers you a contingency arrangement in a divorce, that is a warning sign rather than a bargain.
New York goes considerably further for domestic relations matters. Under 22 NYCRR § 1400.3 a written retainer is mandatory and must set out, in plain language: the names and addresses of both parties; the nature of the services; the advance retainer and what it covers; refund circumstances if the attorney withdraws or is discharged; your cancellation rights; payment terms once the retainer is depleted; the hourly rates of all personnel and reimbursable disbursements; and the frequency of itemised billing, "which shall be at least every 60 days." It also provides that "the client may not be charged for time spent in discussion of the bills received."
That list is a useful benchmark wherever you are. A retainer that covers all of it is a well-drafted retainer.
A retainer is a contract. Firms present them as standard because it is efficient, not because they are fixed.
Reasonable things to ask for: a smaller billing increment; a named cap on a specific stage; an agreement that particular categories of work go to a lower-rate fee earner; a limited-scope retainer covering only certain steps; a commitment to notify you before the bill passes a threshold.
Some firms will say no. Asking costs nothing and tells you something about how they work.
Verification note. Canadian retainer requirements vary by province and are not covered here — the rules above are US. Confirm your province's requirements with your law society. Billing increments are a matter of contract rather than regulation in both countries; the figures given are common practice, not legal standards.
In the United States, Rule 1.5(b) requires the fee basis to be communicated, preferably in writing. In New York domestic relations matters a written retainer is mandatory. In Canada, requirements vary by province. In every case, insist on one — a verbal fee arrangement is bad for both sides.
It varies enormously with the complexity of the matter and the local market, and there is no benchmark worth quoting. What matters more is that you understand what happens when it runs down and what the replenishment trigger is.
Many retainers permit annual rate increases on notice. Check whether yours does, and what notice is required.
You do not have to. Taking the document away and reading it properly is entirely normal, and a firm that pressures you to sign on the spot has told you something useful.
Read it now — it takes twenty minutes and it will change how you communicate. Then ask about anything unclear. In New York specifically, you cannot be charged for the time spent discussing the bill with you.
Last reviewed August 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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This guide is general information, not legal advice. Laws change and differ by jurisdiction — confirm specifics with a local family lawyer or your court's official website. If you use SortMyDivorce, your letters stay confidential — never shared, never sold.