Can I get him to pay my Virginia divorce attorney’s fees?

Posted on Jul 26, 2019 by Katie Carter

Literally no one ever wants to pay attorney’s fees. It’s a reoccurring theme, and one I’m more or less used to at this point.

We get questions every single day about pro bono work, free consults, and whether we work with legal service insurance provided through employers. When women find out that we really don’t do any of those things (or, at least, not in the way they want us to do it), they jump to the next best thing – how to get HIM to pay for the attorney’s fees instead.

I’ll explain a little bit more. We do pro bono work, of course – but that doesn’t mean that we’ll take on an entire case, no matter what, from beginning to end, for no fee. Mostly, that means that we volunteer to provide advice – usually, at our divorce and custody seminars! We believe strongly in providing Virginia women with the information they need to make the right choices, but we don’t really have the ability to take on entire cases (some of which take years and tens of thousands of dollars to complete) for free. We have lots of awesome resources, though – including a whole host of free books (four, to be exact) and reports, plus low cost seminars for both divorce and custody, Girl’s Night Out events where we provide food and drinks, and even an annual women’s scholarship competition. So, yeah, we’re doing a LOT!

But, anyway, despite all that, no one wants to pay attorney’s fees. I get it. Even though you’ve probably got a healthy income (or even if you don’t), everyone lives up to their means. There’s not a lot of extra disposable income available, let alone thousands of dollars of it. It’s difficult to imagine paying for divorce, especially since it feels a little bit like a blank check. Family law attorneys work on retainers, and there are virtually no flat fees. So, when your retainer runs out, you have to replenish it. All you know is how much your attorney charges per hour, but there’s no guarantees about how expensive the total overall case will be. (And certainly you can understand – we never know how difficult your husband will be, or even the attorney who he hires!)

It’s one thing if your case is negotiated, but it’s another thing if your case is litigated. These cases can be super expensive, especially where spousal support and custody are concerned. When will it settle? How much will that cost? To some extent, these things are unknowable in advance.

So how do you know whether you can even afford it? And, if he earns more, shouldn’t he be responsible for paying for a portion of your fees, too?

Well, there are really two different answers to this question, and it all comes down to HOW you get divorced.

In Virginia, there are two ways to get divorced – either in court, or by agreement of the parties. Depending on how your divorce wraps up will impact whether it’s at all realistic to ask for your attorney’s fees.

Attorney’s fees in a litigated divorce

Judges feel pretty similarly about attorney’s fees: on a basic level, you are responsible for hiring an attorney whom you can afford. To make an analogy, you should not buy a Tesla if you are on a Kia budget. It’s on you to make smart financial decisions, and ones you can fund yourself.

We DO sometimes see awards of attorney’s fees – though I’ve literally never seen a case where a judge requires a husband to pay 100% of his wife’s attorney’s fees – associated with bad conduct. I don’t mean bad conduct in the “well, this is a domestic violence case” kind of way. I mean that legally he behaved badly. For example: when we request discovery, a party has 21 days to respond. If he doesn’t respond, you file a motion to compel. At the motion to compel, you can ask for your fees associated with that motion – sometimes, fees like that are granted.

I had a case recently where I got attorney’s fees, and it was because the husband was refusing to pay child support according to the guidelines, when we had an agreement that specifically said that he’d pay child support according to the guidelines. Because he violated that agreement, and made the whole hearing necessary when it shouldn’t have been, I got $1,200 in fees. It wasn’t much – a drop in the bucket, actually, compared to what the client spent overall – but it was something, and it was related specifically to his bad behavior.

So, chances are virtually impossible that the judge will order that you get 100% of your fees paid for by your husband. It is possible, though, that you could receive a portion of your fees if you expend unnecessary amounts of money getting him to do things that he’s already legally required to do.

It’s also possible that the judge would advance money to you that he then deducts from your portion of the equitable distribution award. I had a case once where a husband asked for that — $5,000 – but the judge ultimately denied it. I imagine it could be successful, under the right circumstances, but that’s still not getting him to pay for your divorce. That’s just getting him to come off of a little bit of what is rightfully yours. That could work, I imagine, in a case where he cut you off from access to the marital money.

A kind of big catch? You’d have to get to court to even ask for this consideration, which means that you’d have already had to hire an attorney (and pay a retainer fee) to get to that point at all. So, if he’s cut you off, that’s expensive and difficult in and of itself.

But, as far as a litigated divorce goes, I think those are your best (and probably only) options.

Attorney’s fees in an uncontested divorce

In an agreement, on the other hand, you can do anything that he will agree to do. If he signs an agreement saying that he’ll pay for your attorney’s fees, then he’ll have to pay for your attorney’s fees. (Although, as a word of caution, I would still say that you should consider this as an award of REASONABLE attorney’s fees; if you go crazy spending money or making additional issues, chances are you won’t recover all of what you spent!)

Still, the likelihood of success on this point is limited. Since he’ll likely have an attorney and, even if he doesn’t, he will bristle at the thought of paying his fees and yours, he’ll almost certainly refuse. And, since a judge almost certainly won’t award attorney’s fees if you ask for it (barring bad behavior, like I described above) it gives you virtually no negotiating power. You can either accept his no, or take him to court (which would cost more attorney’s fees, which are likely not recoverable) and ask the judge to award them. So, most of the time, even in an agreement, receiving attorney’s fees is pretty unlikely.

That’s probably pretty bad news. I don’t mean to be defeatist (that’s actually the opposite of my goal!) but to give you a realistic idea of what to expect. Having realistic ideas can help you make good decisions, both before things really get moving and as the case moves forward. Hire an attorney you can afford, and keep the case as amicable as possible in order to avoid expensive litigation that you really can’t afford. Talk to your attorney realistically about your budget and concerns, and try to find a way to work within those constraints.

For more information, or to talk to an attorney, give our office a call at 757-425-5200.