Evergreen Retainer Agreements for Family Law: Template + State-by-State Rules

Disclaimer: This article and the accompanying template are for informational purposes only and do not constitute legal advice. Trust accounting and fee agreement rules change, and some details here may not reflect your state's current rules. Any firm adapting the template below should have it reviewed by counsel licensed in, and familiar with, the firm's specific state.

TL;DR

An evergreen retainer is a family law fee structure in which the client maintains a defined minimum trust balance throughout the matter, with automatic replenishment when the balance drops below a floor. It is one of the most effective retainer structures for family law because it eliminates the gap between work performed and payment received — the gap where most family law write-offs occur.

Evergreen retainers are permissible in every U.S. state, but the trust accounting rules, disclosure requirements, and prohibitions on certain structures (non-refundable retainers, in particular) vary significantly. This article provides a ready-to-adapt template, then covers the state-specific rules for 20 jurisdictions where family law practice is concentrated.

For the general collections context this fits into, see Aparti's family law collections playbook.

What Is an Evergreen Retainer?

An evergreen retainer is a fee arrangement with three components:

1. An initial deposit placed into the firm's IOLTA (Interest on Lawyers Trust Account) trust account at engagement
2. A defined replenishment floor — a minimum balance below which the trust account cannot drop
3. Pre-authorized replenishment — when the balance drops below the floor, the client is invoiced (and pre-agrees to pay) the amount needed to restore the original deposit level

The structure is sometimes called a "replenishing retainer," "evergreen fund," or "minimum balance retainer." The substance is the same: the trust account always carries a positive working balance, and replenishment is structural rather than reactive.

Why Family Law Uses It More Than Other Practice Areas

Family law has three structural features that make evergreen retainers especially well-suited:

• Long matter duration. Average contested dissolution runs 8–18 months. A traditional one-time retainer is exhausted long before the work concludes.
• Mid-matter liquidity volatility. Client financial circumstances change during the case (frozen accounts, asset divisions, employment changes). A retainer structure that depends on the client having available cash later is fragile.
• Emotional billing dynamics. Replenishment requests timed reactively, when the trust account hits zero, feel like the firm is asking for more money. Replenishment timed structurally, at a defined floor, feels like maintaining a stable balance. Same dollars; very different perception.

For the broader analysis of why family law has unique billing challenges, see Aparti's piece on why family law firms have the worst collection rates in legal.

The Evergreen Retainer Template

Below is a template suitable for adaptation. It is not legal advice, and any firm using it should have it reviewed by counsel familiar with the firm's specific state rules. Bracketed text requires firm-specific completion.

EVERGREEN RETAINER PROVISIONS
(To be included as a section within a complete family law engagement letter)

1. Initial Retainer Deposit.
Client agrees to deposit with Firm the sum of $[INITIAL_RETAINER_AMOUNT]
(the "Initial Retainer"), to be held in Firm's IOLTA trust account at
[BANK_NAME], account number [LAST_4_DIGITS]. The Initial Retainer will
be applied against fees earned and costs advanced by Firm in connection
with the matter.

2. Trust Account Treatment.
The Initial Retainer and all replenishments are the property of Client
until earned by Firm. Funds will be held in Firm's IOLTA trust account
in accordance with [STATE] Rules of Professional Conduct
[INSERT_APPLICABLE_RULE]. Firm will provide Client with a written
accounting of trust account activity not less than monthly, included
with each invoice.

3. Replenishment Floor.
Client agrees that the trust account balance attributable to this
matter shall not fall below $[FLOOR_AMOUNT] (the "Replenishment
Floor"), which equals [40]% of the Initial Retainer. When the balance
approaches or falls below the Replenishment Floor, Firm will issue a
replenishment invoice in the amount necessary to restore the balance
to the level of the Initial Retainer.

4. Replenishment Authorization.
Client hereby authorizes and agrees to pay replenishment invoices
within [TEN (10)] business days of issuance. Replenishment invoices
are not optional. Failure to timely replenish constitutes a material
breach of this agreement and may be grounds for Firm's withdrawal from
representation in accordance with [STATE] Rule [INSERT_WITHDRAWAL_RULE].

5. Application of Funds.
Firm will issue monthly invoices identifying fees earned and costs
advanced during the prior period. Funds will be transferred from the
IOLTA trust account to Firm's operating account
[INSERT_STATE_SPECIFIC_TIMING — typically after issuance of the
invoice and any required holding period]. Client has the right to
dispute any invoice in writing within [INSERT_NUMBER] days of receipt;
disputed amounts will not be transferred until the dispute is resolved.

6. Refundability.
The Initial Retainer and all replenishments are refundable to the
extent not earned by Firm. Upon conclusion of the matter, or upon
Client's termination of Firm's representation, any unearned portion
of the trust account balance will be returned to Client within
[THIRTY (30)] days, together with a final accounting.

[Note: Many states prohibit "non-refundable retainers" entirely or
require specific language to permit them. The default position should
be refundability. See state-specific sections below.]

7. Interest Treatment.
Funds held in Firm's IOLTA trust account earn interest, which is paid
to [STATE_IOLTA_PROGRAM] in accordance with [STATE]'s mandatory IOLTA
rules. No interest accrues to Client or Firm on funds held in trust.

8. Adjustment of Floor.
The Replenishment Floor and Initial Retainer levels may be adjusted by
mutual written agreement during the course of the matter. Adjustments
will typically be considered when the scope of representation
materially changes, such as the matter transitioning from a
negotiation track to a litigation track.

9. Acknowledgment.
Client acknowledges that Client has read and understood the foregoing
provisions, has had an opportunity to consult with independent counsel
regarding this agreement, and enters into this evergreen retainer
arrangement voluntarily.

Notes on Adapting the Template

• The floor percentage — 40% is a common choice but ranges from 25% to 50% across firms. Lower floors mean more frequent replenishment requests; higher floors mean more capital tied up in trust at any one time.
• The replenishment payment window — 10 business days is standard. Some firms use 5 business days for high-velocity matters or 15 days for slower-moving matters.
• The dispute window — typically 15 to 30 days. Should match the firm's general invoice dispute policy.
• The final accounting timeline — 30 days is a common standard but several states have specific rules; verify against your state's trust accounting rules.

For the broader engagement letter context in which these provisions sit, see Stage 2 of Aparti's family law collections playbook.

The Core Trust Accounting Rules Every State Follows

Before the state-by-state breakdown, the underlying framework. Almost every U.S. jurisdiction follows variations of the ABA Model Rules of Professional Conduct, specifically:

• Model Rule 1.5 — fees must be reasonable; certain agreements must be in writing
• Model Rule 1.15 — client funds must be segregated in trust; specific accounting required
• Model Rule 1.16 — withdrawal from representation, including for non-payment

The variations between states are typically in:

• Whether non-refundable retainers are permitted (some states prohibit entirely)
• When earned fees may be transferred from trust to operating (immediately vs. after notice period)
• Specific accounting and recordkeeping requirements (some states audit; others rely on self-reporting)
• IOLTA participation rules (mandatory in nearly all states, but with different administrative bodies)
• Disclosure language required in engagement letters

The state-specific sections below highlight the variations that matter most for evergreen retainer structures.

State-by-State Rules

The states below are covered in order by family law practice volume. Each section identifies the key trust accounting rule, the engagement letter requirements, the position on non-refundable retainers, and any state-specific evergreen retainer considerations.

California

Key rules: California Rules of Professional Conduct Rule 1.5 (reasonable fees), Rule 1.15 (safekeeping of funds), and Rule 1.16 (withdrawal). California Business and Professions Code §6148 requires written fee agreements for matters reasonably expected to exceed $1,000.

Non-refundable retainers: Permitted only under narrow conditions. California permits "true retainers" (fees paid solely to ensure availability) as non-refundable, but advance fee retainers — which is what most family law retainers actually are — must be refundable to the extent unearned. See Baranowski v. State Bar (1979) 24 Cal.3d 153.

Trust account transfer: Funds may be transferred from IOLTA to operating after the fee is earned, after the client has been given a reasonable opportunity to object, and after the firm has issued an invoice. There is no fixed holding period in the rule, but most firms wait 7–10 days after invoicing.

Mandatory IOLTA: Yes. The State Bar of California administers the IOLTA program.

Family law-specific: California Family Code §2030 and §2032 authorize fee orders that can fund family law representation from community assets. This is highly relevant for evergreen retainer structures — see the discussion of pay-through mechanisms in Aparti's collection rates analysis.

Evergreen-specific notes: California permits evergreen structures with appropriate disclosure. The replenishment authorization should be clearly stated in the written fee agreement. California also expects specific disclosure language regarding refundability — confirm with current State Bar guidance.

New York

Key rules: New York Rules of Professional Conduct Rule 1.5 and Rule 1.15. 22 NYCRR Part 1215 requires written letters of engagement generally, but explicitly exempts domestic relations matters (§1215.2) — those are instead governed by the more detailed, family-law-specific requirements of 22 NYCRR §1400.

Non-refundable retainers: Generally prohibited in matrimonial matters under 22 NYCRR §1400.4. New York is one of the strictest states on this point. Non-refundable retainers in domestic relations cases are not permitted.

Trust account transfer: Funds may be transferred when earned, with appropriate accounting.

Mandatory IOLTA: Yes. New York requires participation in the IOLA program (note: "IOLA" not "IOLTA" in New York).

Family law-specific: New York's 22 NYCRR §1400 imposes among the strictest requirements in the country for matrimonial fee agreements. 22 NYCRR §1400.3 requires a statement of client's rights and responsibilities, itemized billing at regular intervals, and the right to arbitrate fee disputes; §1400.4 separately prohibits non-refundable retainers. Noncompliance with §1400 can affect fee enforceability.

Evergreen-specific notes: Permitted, but the engagement letter must comply with all §1400 requirements. The statement of client's rights and responsibilities must be provided. The fee agreement must specifically disclose the replenishment mechanism. Given New York's strict rules, family law attorneys in New York should have engagement letters reviewed annually by ethics counsel.

Texas

Key rules: Texas Disciplinary Rules of Professional Conduct Rule 1.04 (fees) and Rule 1.14 (safekeeping property).

Non-refundable retainers: Permitted in narrow circumstances as "true retainers" under Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.—Austin 2007, no pet.). Advance fee retainers must be refundable to the extent unearned.

Trust account transfer: Funds become operating account funds when earned. Texas does not impose a specific holding period beyond requiring proper accounting.

Mandatory IOLTA: Yes. The Texas Access to Justice Foundation administers IOLTA.

Family law-specific: Texas Family Code permits temporary spousal support orders and orders for interim attorney's fees, which can be used as funding mechanisms similar to California's §2030.

Evergreen-specific notes: Permitted. Texas is generally accommodating of evergreen structures. The engagement letter should clearly identify the replenishment trigger and payment obligation.

Florida

Key rules: Florida Rules of Professional Conduct Rule 4-1.5 (fees) and Rule 5-1.1 (trust accounts).

Non-refundable retainers: Generally not permitted. Florida is strict on this point. Florida Rule 4-1.5(e) permits "minimum fees" only when explicitly characterized as fees for the right to engage the lawyer (true retainers), and Florida courts have consistently treated most advance fee arrangements as refundable to the extent unearned.

Trust account transfer: Florida Rule 5-1.1 requires funds to be in trust until earned. Earned fees may then be transferred.

Mandatory IOLTA: Yes. The Florida Bar Foundation administers IOTA (Florida uses "IOTA" rather than "IOLTA").

Family law-specific: Florida Statutes §61.16 permits attorney fee awards in family law matters and §61.13 governs the financial aspects of dissolution.

Evergreen-specific notes: Permitted. The engagement letter should specifically address refundability of unearned amounts and the replenishment authorization.

Illinois

Key rules: Illinois Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted only as true retainers (Dowling v. Chicago Options Associates, 226 Ill.2d 277 (2007)). Advance fee retainers must be refundable.

Trust account transfer: Funds may be transferred when earned.

Mandatory IOLTA: Yes. The Lawyers Trust Fund of Illinois administers IOLTA.

Family law-specific: Illinois Marriage and Dissolution of Marriage Act §508 permits interim and final attorney fee awards between parties.

Evergreen-specific notes: Permitted with appropriate disclosure.

Pennsylvania

Key rules: Pennsylvania Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted only as true retainers; advance fees must be refundable.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Pennsylvania IOLTA Board administers the program.

Evergreen-specific notes: Permitted. Pennsylvania's rules are largely consistent with the ABA Model Rules.

Ohio

Key rules: Ohio Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted as true retainers only.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Ohio Legal Assistance Foundation administers IOLTA.

Evergreen-specific notes: Permitted.

Georgia

Key rules: Georgia Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Georgia is unusual in permitting non-refundable retainers under certain circumstances, but the agreement must be clear, in writing, and the fee must be reasonable. Most ethics counsel advise treating retainers as refundable to the extent unearned to avoid disputes.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Georgia Bar Foundation administers IOLTA.

Evergreen-specific notes: Permitted.

North Carolina

Key rules: North Carolina Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted as true retainers only.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The North Carolina IOLTA Program administers the trust account interest program.

Evergreen-specific notes: Permitted.

Michigan

Key rules: Michigan Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Generally permitted with clear written disclosure, but the underlying fee must be reasonable.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Michigan State Bar Foundation administers IOLTA.

Evergreen-specific notes: Permitted.

New Jersey

Key rules: New Jersey Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted as true retainers only.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The IOLTA Fund of the Bar of New Jersey administers the program.

Evergreen-specific notes: Permitted. New Jersey has historically had detailed trust accounting audits; firms should maintain meticulous records.

Virginia

Key rules: Virginia Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Virginia permits non-refundable retainers in certain circumstances but the State Bar has issued guidance recommending refundability provisions. See Virginia Legal Ethics Opinion 1606.

Trust account transfer: When earned.

Mandatory IOLTA: Yes.

Evergreen-specific notes: Permitted.

Washington

Key rules: Washington Rules of Professional Conduct Rule 1.5 and Rule 1.15A.

Non-refundable retainers: Permitted as true retainers only; advance fees must be refundable.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Legal Foundation of Washington administers IOLTA.

Evergreen-specific notes: Permitted.

Arizona

Key rules: Arizona Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted under narrow circumstances.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Arizona Foundation for Legal Services and Education administers IOLTA.

Evergreen-specific notes: Permitted.

Massachusetts

Key rules: Massachusetts Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Massachusetts permits "engagement retainers" (true retainers) as non-refundable but treats advance fees as refundable to the extent unearned.

Trust account transfer: When earned.

Mandatory IOLTA: Yes.

Evergreen-specific notes: Permitted.

Colorado

Key rules: Colorado Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Permitted as true retainers only.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. Colorado Lawyer Trust Account Foundation administers IOLTA.

Evergreen-specific notes: Permitted. Colorado Rule 1.5(b) requires the basis of the fee to be communicated to the client, generally in writing.

Minnesota

Key rules: Minnesota Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Generally permitted only as true retainers; advance fees must be refundable. See In re Disciplinary Action Against Lochow, 469 N.W.2d 91 (Minn. 1991).

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Minnesota IOLTA Program administers the program.

Evergreen-specific notes: Permitted.

Tennessee

Key rules: Tennessee Rules of Professional Conduct Rule 1.5 and Rule 1.15.

Non-refundable retainers: Tennessee permits non-refundable retainers with clear written disclosure, though the underlying fee must remain reasonable.

Trust account transfer: When earned.

Mandatory IOLTA: Yes.

Evergreen-specific notes: Permitted.

Maryland

Key rules: Maryland Attorneys' Rules of Professional Conduct Rule 19-301.5 and Rule 19-301.15.

Non-refundable retainers: Permitted only as true retainers; advance fees must be refundable.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Maryland Legal Services Corporation administers IOLTA.

Evergreen-specific notes: Permitted.

Oregon

Key rules: Oregon Rules of Professional Conduct Rule 1.5 and Rule 1.15-1.

Non-refundable retainers: Oregon amended its rules effective January 1, 2026. RPC 1.5(c)(3) now prohibits labeling fees "nonrefundable" or "earned on receipt"; prepaid fees are instead governed by new RPC 1.5(c)(4), which requires them to be treated as advances against services and refundable to the extent unearned. This is a recent, significant change — Oregon was previously more permissive on non-refundable framing than most states, so firms should confirm their engagement letters reflect the current rule.

Trust account transfer: When earned.

Mandatory IOLTA: Yes. The Oregon Law Foundation administers IOLTA.

Evergreen-specific notes: Permitted.

The Five State-Rule Variations That Matter Most for Evergreen Retainers

Across the 20 states above, the variations that matter most when designing an evergreen retainer fall into five categories.

1. Non-Refundable Retainer Treatment

The most significant variation. States range from strict prohibition of non-refundable advance fees (New York is the strictest, and Oregon tightened its rule on this point effective January 2026) to more permissive treatment with clear disclosure (Georgia, Tennessee).

For evergreen retainers, the default position should be refundability to the extent unearned. This is permitted in every state, satisfies the strictest jurisdictions, and avoids the dispute-magnet that non-refundability creates. Aparti recommends this position regardless of jurisdiction.

2. Specific Family Law Disclosure Requirements

A handful of states impose family-law-specific engagement letter requirements that go beyond general professional conduct rules. New York's 22 NYCRR §1400 is by far the most demanding — noncompliance carries real consequences for the fee agreement. Other states (notably Florida and California) have lighter but still family-law-specific requirements. The evergreen retainer provisions must fit within the broader engagement letter that satisfies these state-specific requirements.

3. Trust Account Transfer Timing

Most states permit transfer of earned fees from trust to operating "when earned" without a specific waiting period. A minority of states impose specific holding periods or invoice-and-wait requirements. The template above includes a placeholder for state-specific timing; this should be filled in based on local rules.

4. Required IOLTA Participation

IOLTA participation is mandatory in essentially every state, but the administering body, the specific account requirements, and the reporting obligations vary. Confirm the firm is participating in the correct program for the state.

5. Audit and Recordkeeping Requirements

Some state bars (New Jersey is among the strictest) conduct random trust account audits. Others rely on self-reporting and respond only to complaints. Firms in audit-heavy jurisdictions must maintain meticulous reconciliation records and should consider engaging an accountant familiar with legal trust accounting.

Five Practical Questions Every Family Law Firm Should Answer

Before deploying an evergreen retainer in your practice, answer these five questions:

1. What Is the Right Initial Retainer Level for Each Matter Type?

Set the initial retainer at 1.5x to 2x the realistic 60-day burn rate for the matter as scoped. Typical 2026 ranges by jurisdiction and matter type are covered in Aparti's collections playbook. The number depends on attorney rates, typical matter complexity, and local market norms.

2. What Is the Right Floor Percentage?

40% of the initial retainer is the most common floor. Lower floors (25–30%) mean more frequent replenishment activity and more administrative load. Higher floors (50%) mean more client capital tied up in trust. The choice depends on the firm's billing velocity and the matter type.

3. What Replenishment Payment Window Will the Firm Enforce?

10 business days is standard. The window should be enforceable — meaning the firm actually responds to late replenishment, rather than letting it slide. The most common evergreen failure mode is not the structure itself but the firm's reluctance to enforce its own terms.

4. How Will the Firm Handle Scope Expansion?

When a matter transitions from negotiation-track to litigation-track, both the initial retainer level and the floor should be adjusted upward by written amendment. The template above includes a provision for this. The firm should have a defined process — typically tied to specific case events — that triggers the conversation.

5. What Is the Firm's Policy on Partial Refunds?

The engagement letter should specify the timeline and process for refunding unearned amounts at conclusion of the matter. 30 days is a reasonable standard. Refund delays are a common source of post-matter friction and complaints.

How Evergreen Retainers Fit Into the Broader Collections Infrastructure

The evergreen retainer is one component of a larger system. Three other components are typically required for the structure to work as intended:

1. Pre-engagement screening. Some clients are not candidates for any retainer structure. Aparti's collection rates analysis and collections playbook cover the five-factor intake scoring framework. Clients scoring high on collection risk need either limited-scope engagements or a higher retainer floor — sometimes both.
2. Mid-matter checkpoints. The 90-day reset (a scheduled, non-billable, 20-minute call) surfaces problems that no retainer structure can solve unilaterally. If a client's financial circumstances have changed, the firm needs to know early.
3. Pre-judgment reconciliation. The 30-day pre-judgment protocol ensures the trust account is reconciled, the final invoice is previewed, and any payment plan is established before judgment is entered. Without this, even a well-funded evergreen retainer can produce post-judgment AR problems.

For the full system, see Aparti's family law collections playbook.