I was giving one of our monthly divorce seminars a little while back when a woman used the Q&A function on Zoom to send me a question anonymously. (She didn’t need to do it anonymously; none of our attendees can see who else is in attendance, and only the presenter can see the name of the person asking the question(s), which, of course, we never reveal.)
“I only make $500 a month. I’m so embarrassed, but I can’t afford to hire an attorney,” she said.
It’s a pretty common thing, actually and, before I go any further, I feel compelled to say that you shouldn’t feel embarrassed about your financial situation.
We’re all brought into the world differently and the options that are afforded to all of us are different. By the time you’ve gotten married, maybe even had children, things may have changed – for better or for worse – or they may not have. My only point here is that someone earning $500,000 a month is no more or less virtuous or important or worthy of representation than the person earning $500 a month.
But there’s no questions that the options available to them are different. So, what are your options if your income is on the lower end of the spectrum?
Basically, divorce is divorce. There are only two options: you either negotiate an agreement that spells out how your assets, liabilities, and responsibilities will be divided, or you litigate and let the judge decide.
The end goal is divorce, and there’s two ways to get there: agreement or litigation. But there are a number of different paths that you help you make your way towards your eventual end goal.
Do It Yourself Divorce
You are technically allowed to represent yourself in any divorce or custody case in the Commonwealth, no attorney required.
Should you? Well, that’s a different question entirely, and it probably doesn’t surprise you that it gives me some hesitation to suggest unequivocally that you could or should represent yourself. It’s ultimately going to be much easier to try to draft of your own separation agreement than to litigate a divorce trial (it often takes new associate attorneys years of practice before they handle a whole trial, just to give you some perspective), but you’re allowed to do either. Or some combination of both.
A separation agreement can’t be un-signed later, so you need to make sure that you’re aware of your rights and entitlements under Virginia law. I’ve seen plenty of women draft their own agreements that are FAR WORSE than what an attorney would have drafted on behalf of her husband. You have to remember that your assets are probably worth a lot – tens of thousands if not hundreds of thousands, or even millions, even if you don’t necessarily have access to liquid cash today – especially compared to the cost of an hour or two with an attorney.
Remember that you don’t have to hire an attorney to consult with one. You could draft an agreement, and take it to an attorney to be reviewed before you begin negotiation or before you sign.
Likewise, if your case is litigated, you can hire an attorney to handle a certain piece of your case – like your pendente lite hearing – if the attorney is willing. Attorneys aren’t ALWAYS willing to handle cases this way; it’s actually fairly complicated on our end. But it’s ethically allowed, and therefore theoretically possible.
You could also still consult with an attorney, too, so if you needed help preparing discovery, for example, you could take in what you’ve drafted and have the attorney review it. You could meet with an attorney to help prepare you for a particular hearing or something, too, depending on how things go.
It’s probably not recommended. After all, each court has its own unique local rules and procedures, and you’ll be responsible for knowing those, as well as understanding Virginia law as it relates to your case. It’s not easy – but, if it were, nobody would hire attorneys.
Alternate Dispute Resolution
You could also look into your ADR, or alternate dispute resolution, options. First and foremost is probably mediation, because you and your soon to be ex can share a mediator.
Keep in mind that a mediator, even if he or she is licensed as an attorney, is not representing you in that capacity. It’s not his or her job to advocate for you, to encourage you to push for more, or to advise you what the judge might do if the case were litigated. It’s just his or her job to help you reach an agreement – basically, any agreement.
To women considering mediation, I’d give essentially the same advice I gave above: talk to an attorney – even if you don’t HIRE that attorney – before and after mediation. Make sure that, before you sign that agreement, its as good as possible, and isn’t selling you short. You don’t have to hire an attorney to talk to one, or to make sure that your agreement is solid.
Traditional Legal Representation
Lots of women – even women without a lot of money coming in each month – ultimately end up hiring attorneys. How? Well, it’s probably safe to say that, for a lot of women, someone else helps pay the bill. Sometimes, it’s their parents. Sometimes, it’s a friend or neighbor. Of course, these women are some of the lucky ones. Not everyone has a dad with deep pockets to help bail them out of their troubled marriage, even if he might want to.
Sometimes, it’s just a credit card, or even a 401(k) loan.
Those options aren’t possible for you? Well, if your husband has income, you may be able to file for divorce, schedule a pendente lite hearing, and ask for an advance on equitable distribution to help cover your attorney’s fees. It’s not a guarantee, but it’s possible, especially if he out earns you and has left you with essentially no access to marital funds.
Will the court make him pay my attorney’s fees?
I don’t want to mislead you. When I said earlier that you could ask for an ADVANCE on equitable distribution, that’s what it is – an advance. Meaning that, later, when we go through how everything is going to be divided, the funds you received in advance will be part of what you receive.
The court generally won’t make one party pay for the attorney’s fees of both. For whatever reason, the court seems to think that each party should be responsible for choosing an attorney that he or she can afford. That this is fairly inequitable in a lot of situations seems clear to me, but the fact remains that this is how the court generally thinks.
We’ll ask for attorney’s fees, if a contested divorce is filed on your behalf, but, in general, attorney’s fees are not awarded. I don’t say this to be discouraging, but to help give you reasonable expectations.
An advance is a possibility, but having him pay all of your fees is seriously unlikely – unless he agrees to do so in a separation agreement, and, anyway, that’s also fairly unlikely.
There’s no need to be embarrassed by your financial situation, but you do have to operate within it. And part of that comes from knowing what options are available to you and trying to make the most of them. We’re not magicians and we can’t make money appear where it doesn’t exist, but we can try to help point you in the right direction. Maybe an advance on fees is possible for you. Maybe mediation would be a great option to try to save some money. In any case, you can always attend our monthly divorce seminar (where you can ask your questions to a Virginia divorce lawyer without paying the cost of a consultation) or request a free copy of our divorce book for Virginia women.
For more information, or to schedule a consultation, give our office a call at 757-425-5200.