We can all put divorce right up there on the tippy top of the list of things we don’t want to pay for, right? Even if you want the divorce itself, you don’t really want to pay the costs associated with it. A joke I hear all the time – especially when I tell random people what I do for a living – is, “You know why divorce is expensive?” And then they chuckle and say, “Because it’s worth it!”
While you may agree, at least in part, it’s a little discomfiting to have very little idea of the total overall cost of your divorce. It’s still worse to wonder how you’re going to manage to foot the bill, especially if you’ve been a stay at home mom, or the one who curtailed her career for the sake of supporting your burgeoning family during the course of the marriage. (Which is to say like literally almost every wife and mother ever. But that’s beside the point.)
We almost always get questions about who pays for the divorce, and whether it’s possible to get him to pay for it instead.
The answer to this one is pretty simple:
Yes, you can get him to pay for the divorce – if he’ll agree in writing to do so. We often put this in our separation agreements, and hope that he’ll just go ahead and sign. It does happen sometimes, especially in cases where the wife hires the lawyer and then the lawyer prepares all the documents.
To be clear, though, in a divorce or custody situation, a husband and wife DO NOT share a lawyer. They CAN NOT share a lawyer. There is no such thing. While there may only be one attorney involved in the divorce, that attorney represents one party exclusively, and can not give any advice to the other party (aside from a general recommendation that they get their own independent legal advice).
I’m just describing a situation in which I’ve seen it happen. In that scenario, when the wife takes on the burden of having the agreement drafted and the husband doesn’t seek his own independent counsel, he’s often more willing to share in a portion of the fees. (Probably because it saves him effort, and also because he doesn’t have an attorney telling him that he doesn’t have to agree to that!)
If he’s paying for his own attorney, he’s probably less likely to pay for yours. His attorney will advise him he doesn’t have to, and, anyway, it’s expensive – as he’ll know, since he’s already paying his own attorney bills himself.
The problem is that, if you go to court, the judge will almost certainly make you responsible for paying the costs of securing your own legal representation, too. So there’s not much we can do to force him to agree; if he doesn’t agree, he doesn’t agree. The court generally feels that each of you is responsible for securing representation that you can afford, and doesn’t make the other party bear that expense.
But I thought you could ask for attorney’s fees!
You CAN ask for attorney’s fees. But that doesn’t mean that you’ll get a blank check, and your husband will just have to pay whatever costs you incur. In fact, that’s nothing at all like what it means. In general, when it comes to attorney’s fees, I’ve seen it handled a couple of ways.
1. You request attorney’s fees when the other side doesn’t behave.
Now, it’s important to note that when I say “behave”, I don’t mean that you’re going to LIKE the way that he (or his attorney) conducts his case, or that you think that it is fair.
Just because he won’t sign an agreement or participate in the way that you deem most important/effective/necessary under the circumstances doesn’t mean that he has misbehaved.
What I mean is that, to the extent that he’s flouting the rules of the court or the laws of the state of Virginia, you can hold him accountable. Once you’ve filed for divorce, you have the teeth of the court to enforce specific rules – like, discovery requirements, and compliance with existing orders. To the extent that he does or doesn’t comply with those, you can ask for attorney’s fees to the degree that you had to incur additional expense to force his compliance.
Ultimately, the amount that the judge grants you in fees is up to the judge – it may be some, it may be all (of what it cost you to force compliance, not the costs of your entire divorce), it may be none – but it’s not because the judge thinks you deserve help in paying for your entire divorce. It’s related only to his failure to comply with the court rules or Virginia’s laws.
2. You request an advance of attorney’s fees.
I have seen it happen in a couple of cases that a judge will grant that fees be advanced to the lesser earning spouse. It’s not a guarantee, though; in the cases where I’ve seen this done, there was clearly money to spare (it just wasn’t money that the wife had access to).
It’s not a “gift” either. Its an advance of a party’s interests in equitable distribution of the marital assets, so, if it’s advanced to you, that amount will normally be accounted for later on.
Ultimately, the court feels you’re responsible for doing what you can afford, attorney-wise. That’s not always a good answer, because attorneys are needed even in cases where people can’t pay for it. There’s no question, there’s a gap in access to legal representation, and it affects people who are otherwise unable to pay for it.
There’s not a great solution. Most attorneys don’t do pro bono work, or, at least, they don’t take on entire cases pro bono. Our attorneys volunteer our time for the divorce and custody seminars, but because actually taking on an entire case is a really huge deal…we don’t. You can reach out to Legal Aid; sometimes they can help. But, in many cases, especially if your case is contested, you’ll either have to find a way to pay for the representation you need, go without it, or do it yourself.
For more information or to schedule a consult with one of our licensed and experienced attorneys, give our office a call at 757-425-5200.