When you retain a divorce lawyer, you have two options: (1) separation agreement, and (2) divorce. Either way, you’re taking necessary steps towards divorce – but the process might look different depending on which way you go.
Let’s talk about it.
Either you and your ex agree how you’ll divide things – or the judge will do it for you.
Basically, there are just two ways to get a divorce: either you and your soon-to-be ex-husband reach an agreement about how everything will be divided (all your assets, liabilities, and responsibilities), or a judge will have to do it for you. That’s it. No matter how you move forward, everything must be divided between you. The difference is just whether you do it or whether you want (or need) the judge to do it.
Because it is generally less expensive, less time consuming, and yields the best results, most people would prefer – if at all possible – to resolve their divorces themselves. That’s not to say that it is easy; often times, it is the result of months (or sometimes even years) of work negotiating before resolution is achieved. But, still, it’s often better than the alternative.
Usually, when people go to court and let judges resolve their disputes, it’s because they have no other options. Because, for whatever reason, they can’t reach an agreement with their soon-to-be ex. Usually, the two biggest wild card areas are child custody and spousal support, but those aren’t the only areas where we could have disputes that would result in litigation.
There is no one-size-fits-all, but many people try to negotiate a separation agreement before they file for divorce. In that case, you’d hire an attorney for a separation agreement. Basically, this means that you’ve retained that attorney to represent you in the out-of-court negotiation of a separation agreement, a legal contract that divides all the assets, liabilities, and responsibilities between you and your ex-husband.
If you can’t reach an agreement and you need to go to court, you would retain for a divorce. Divorce – as opposed to a separation agreement – is generally a more expensive proposition, both in terms of how much it costs to retain the attorney and how much it costs to go through the process.
What is a retainer agreement?
A retainer agreement is a legal contract between you and the attorney you hire that governs the terms of your relationship. It will set forth exactly what you can expect, both in terms of working with your specific attorney and working with the firm.
Attorneys use retainer agreements to clarify the scope of work. A separation agreement retainer is different from a retainer for divorce because a separation agreement is intended to be out-of-court negotiation. Divorce, on the other hand, involves making an appearance in court on your behalf.
That doesn’t mean that a separation agreement isn’t part of the divorce process. It is. Remember, either you divide your assets, liabilities, and responsibilities, or a judge will do it for you. This is you trying to work it out without going to court. You can do this after you retain an attorney for divorce – many cases do settle on the brink of trial – but many resolve without ever going to court at all.
In that case, you’d hire the attorney for separation agreement and then, when you had negotiated it and you were ready to move forward with your divorce, you’d hire the attorney for an uncontested divorce. At that point, court appearance is within the scope of work, though it is not a litigated divorce. This is a core difference. Because you and your ex have already worked out the terms, all the attorney has to do is go through the uncontested divorce process, which is much less onerous (and expensive) than litigating the whole divorce. In fact, these days, many courts don’t actually require physical in court appearances at all. (Though, as far as an attorney is concerned, filing a document – like a complaint, which formally opens your case with the court – does constitute “making an appearance” in court because the judge would have to let that attorney out of the case via a motion if she wanted to withdraw from representation of that client in the future.)
Remember that a retainer is not what the attorney expects the case to cost overall; it’s just the amount of money the attorney needs up front in order to file your case with the court.
Wait, wait – so if I retain for a separation agreement, I’ll have to retain again, later, for an uncontested divorce? Why not just retain for divorce from the beginning?
A separation agreement is usually quoted for a lower retainer amount because it does not involve going to court. A retainer for divorce would be higher and would involve the possibility of litigation.
Many people prefer to negotiate a separation agreement first because it keeps costs lower. You could insist on retaining for divorce, if you want, and even still try to negotiate a separation agreement first – but the cost to retain would be higher.
That doesn’t necessarily mean that your case will cost more overall. The retainer is just an amount of money needed up front to take the case. If your case resolves quickly and easily, any remaining trust account funds would be refundable to you. Your attorney also usually won’t be billing differently if yours is a contested or uncontested case; at our firm, we have set hourly rates and we bill in increments of a tenth of an hour as work is done. It doesn’t matter whether our time is spent in negotiation or litigation; the time itself costs the same.
If the time costs the same, how come a contested divorce costs more than negotiating an agreement?
If you can’t reach an agreement and you have to go to court, it usually takes longer. There are more procedural steps – like discovery, pre-trial motions, hearings (like pendente lite), settlement conferences, proffers, and more – that have to be followed, oftentimes before a trial date is even set. This can take time and cost money.
Usually, in a separation agreement case, these steps aren’t undertaken, the parties voluntarily exchange information back and forth, and resolution is achieved outside of court. The total overall cost of a case always relates to how long it takes to resolve.
If you wanted to participate in a form of alternate dispute resolution – like mediation or collaborative divorce – you might find your costs are still different. It all depends on the vehicle you choose to resolve your case.
So, I may have to retain the same attorney twice?
Yeah! It happens all the time. The separation agreement retainer doesn’t cover filing with the court, so you may retain for a separation agreement and then, later, for your uncontested divorce. (Or, if you aren’t able to reach an agreement, for a regular old contested divorce.) Either way – contested or uncontested – the attorney can file and resolve your divorce for you through the court at that point.
Why? Well, in large part, it’s about liability. We have to be very, very clear what, exactly, we are undertaking to do for each client. These labels keep it very clear – both for us and for the client. A separation agreement retainer involves negotiation, but not going to court.
It’s no big deal to retain twice, though. If you have remaining trust account funds, they can be rolled over into the new account and you just make up the difference between the remaining account balance and the quoted amount. For uncontested divorce, the fees are usually low – but needing specialized documents like name change orders and QDROs can drive up the cost some. Still, it’s best to get as much as possible taken care of in real time. (It’s way harder to do, say, a QDRO years in the future!)
If you have more questions about the divorce process, download our Virginia divorce book for women or consider registering for an upcoming women’s divorce seminar. Or, you could skip all that and give us a call to schedule a consultation at 757-425-5200. We’re glad to help.