I shouldn’t have to pay for a family law attorney; I’m innocent!

Posted on Jul 11, 2022 by Katie Carter


This was a new one for me – “I shouldn’t have to pay for a family law attorney; I’m innocent!” While I do sympathize with the sentiment, there’s also a whole lot wrong with it.

In a lot of ways, I know that the way the Virginia court system – and, probably, every court system in existence – is set up feels abusive in many ways. There’s no doubt that, in certain circumstances, litigation can be used abusively against a person, especially a person who has limited means to meet various legal challenges.

The fact that custody and visitation decisions at the juvenile court level can be appealed, the fact that custody, visitation and child support are modifiable based on a material change in circumstances, the fact that spousal support is no longer tax deductible for the person paying it (resulting in a general unwillingness to pay spousal support without litigation) can ALL ultimately lead to litigation that feels, in many ways, incredibly abusive to the person who has to defend against it.

I have definitely seen litigation work in abusive ways and, though the law allows it, that’s definitely not the reason the law was designed to function in this way.

You have to remember: custody, visitation, child support, spousal support, and divorce cases are very, very different from criminal cases and personal injury cases. They’re different substantively, and they’re also different in the eyes of the people (specifically, the judges) who are involved in adjudicating these disputes.

In the eyes of a judge, you are at least partially to blame for the circumstances in which you currently find yourself. I don’t use the words ‘to blame’ to blame or shame you, but to help you understand the dynamics of the system in which you now find yourself.

In a personal injury case, someone has been hurt – usually through no fault of their own. It’s a car accident, or medical malpractice, or something terrible. In a criminal case, someone is defending against allegations that could, potentially, result in severe criminal penalties – fines, jail time, and more. In these cases, the words ‘plaintiff’ and ‘defendant’ take on a specific connotation. The plaintiff is the victim, the innocent person, the wronged one; the ‘defendant’ is the bad guy, or the accused.

In family law, we really don’t make that distinction. Though there’s still a plaintiff and a defendant, what those terms actually mean is just the person who filed the suit first and the person who is defending against it. These words don’t carry an ‘innocent’ or ‘guilty’ connotation; that’s just something we’ve been conditioned to see because most of our exposure is to criminal or personal injury cases.

In family law cases, there’s no guilty or innocent. In fact, we often say that a good result is one where both parties walk away feeling like they’ve lost. It’s rare that there’s a real ‘win’ here, because the end result is dividing families, accounts, retirement, etc. You’re not ‘innocent’, and he’s not ‘guilty’, even in divorced or custody cases involving abuse, addiction, criminal conviction, or other difficult topics. (It is possible, in an abuse case or a case involving other criminal issues, that there will also be a criminal trial, but that’s separate and distinct from the family law component.)

You bear some responsibility here and you have to extricate yourself from the situation. There’s not a whole lot of help out there (though you could reach out to Legal Aid, most law firms don’t do ‘pro bono’ in the sense of taking an entire case on for free) to help you get out of a bad marriage or to help you resolve an ongoing custody case.

We don’t ask the ‘innocent’ or ‘guilty’ question; it’s not a question at all. Family law isn’t about guilt or innocence, it’s about either (1) ending a marriage, (2) establishing support, or (3) determining custody and visitation. Guilt and innocence here don’t really enter into the discussion at all.

Even in custody cases, where, say, a person’s addiction, abuse, criminal acts, or other negative facts would be relevant, it’s not about ‘oh, he doesn’t get custody because he’s guilty,’ it’s about whether custody and visitation would be in the best interests of the child (or children) and, if so, how much.
Too many people get really focused on all the ways that they’ve been wronged and, although its probably unavoidable, it’s also unhealthy and unhelpful.

Though I can completely understand where you’re coming from, and definitely encourage you to look into potential solutions that will help you deal with these issues (like, potentially, therapy, criminal prosecution for his abuse, a protective order etc), I also feel compelled to encourage you not to look to your divorce and custody case for this particular type of resolution.

Most lawyers charge a fee for services rendered, and family law is not an exception. You may be able to find some pro bono help, but it’s usually not because you’re ‘innocent’, but instead because you lack the resources to pay for representation, like at Legal Aid.

I don’t say this to be harsh, so I hope you don’t take this that way. I say it to help you focus on what’s important, to find the support that you need to deal with what you’re going through, and to get the best resolution possible in your family law case.

For more information, to request a copy of our divorce or custody book, or to schedule a confidential consultation, give our office a call at 757-425-5200.