How much does it cost to hire an attorney in my Virginia legal separation case?

Posted on Jun 6, 2016 by Katie Carter

“I want a legal separation. How much will that cost?”

It’s a common question, and I definitely understand why. For any couples who are on their way to a full fledged divorce in Virginia, a separation is the first stop.
Divorce is one of those areas of law where things vary dramatically from state to state, so what happens in one state (even one that is geographically very close, like North Carolina is to us) isn’t necessarily the way things may happen in another state. Because of that, we get a lot of questions from confused women. Maybe they grew up somewhere where the laws were different, or they had a friend who got divorced somewhere else where the rules weren’t quite the same. Whatever the reason, we often find that people have trouble reconciling what they thought about divorce and what the reality of divorce (in Virginia, at least) is actually like.
That doesn’t mean the divorce process in Virginia is awful; in fact, when we’re talking about a legal separation, the way the law works here is often a pleasant surprise.
If you’re wondering how much a legal separation will cost you, the first step is to talk about what a legal separation in Virginia actually is—and then we’ll talk about how much it costs. In fact, while we’re on the subject of costs, we’ll break down how costs work in a divorce case, too, just so you know what to expect and how to begin to plan your case.

What is a legal separation in Virginia?

In Virginia, you don’t have to go down to the courthouse to file for a legal separation. In fact, it’s not really so much of a “legal” process at all (at least, not in the way that you’re thinking of a legal process). There’s no paperwork involved, and you don’t need a lawyer to become separated from your husband.
You become separated in Virginia when two things happen: (1) one of you forms the intention, in your mind, to separate with the ultimate goal of ending your marriage (that doesn’t mean, of course, that you can’t reconcile later—you can, and lots of people do), and (2) you stop cohabitating (a fancy legal word we use to describe ‘living together as husband and wife’).
So, you’re officially legally separated when you form that intent in your mind, and you combine it with no longer cohabitating. It doesn’t take two of you to form the intention, but that doesn’t mean it’s a secret—because you stop cohabitating right away, both parties are aware that something is going on. That doesn’t mean you have to both agree (you don’t), but you will both be aware very quickly.
When you stop cohabitating, you stop living together as husband and wife, which means that both inside of the home and outside of the home you’re behaving as a separated couple. Inside the home, you stop doing those types of things that you would have done before as a matter of course—shopping for each other, preparing meals, eating together, cleaning up after the other—and then, outside of the home, you represent to friends, family members, and acquaintances that you are a separated couple. There’s no playing the happy couple allowed here; as uncomfortable as it is to air your dirty laundry in public (and as much as you feel like that’s what your mother would have always encouraged you to do!), you have to give people an accurate impression of the state of your marriage to qualify as separated.

So why is a separation so darn important, if it doesn’t even require any special steps?

Separation is super important, even though it doesn’t mean that you have to hire an attorney or file any special paperwork at the courthouse.
Why is separation so important? Because, in Virginia (as in most other places) you need grounds to get divorced. You can use fault grounds or you can use no fault grounds, either way, but unless you’re planning on alleging and proving adultery (which is very, very difficult to do LINK), you’re going to have to be separated for at least six months but probably a full year before your divorce can even be granted by the judge.
Separation is an important phase in the process because it makes up your grounds. In a no fault divorce, your grounds are based specifically off of being separated for the appropriate period of time. In Virginia, you must be separated for a year before you can get a divorce, unless (1) you already have a signed agreement AND (2) you don’t have any minor children, in which case you can divorce in as little as six months (but keep in mind that both criteria have to be met; one is not enough).
Even using the other fault based grounds, apart from adultery, you have to be separated for a full year before you can move forward with your divorce. (You can file earlier, but your divorce can’t be granted earlier.)
Needless to say, separation is a hurdle that has to be overcome before a divorce can be granted—so I think it’s already pretty obvious, but I’ll say it anyway—it’s super important.

How much does it cost to get a legal separation?

I think you can probably already tell where I’m going with this. There is no cost at all to get a legal separation. You can do it on your own, and you don’t even need an attorney. It’s easy. In fact, it’s probably the easiest part of the entire process (though some people are a little uncomfortable because it does seem a little difficult to define when the separation happened—don’t worry, though, because it isn’t).

When should I talk to an attorney, and how much will that cost?

You don’t really need to talk to an attorney until you’re ready to start moving forward with your divorce. Most people get started while they’re separated, and sometimes even before they’re separated, but it all depends on the specific facts of your case.
During your period of separation, you can get all your ducks in a row so that, once your separation period is up, you can move forward with your divorce without any further delay. Most people prefer it this way, especially since most of them end up having to be separated for the full year. (It’s a long time, anyway, so why not use some of that time to tie up the loose ends?)
Of course, the specifics of your case depend on the type of divorce you ultimately choose to pursue. Whether you’re looking at an uncontested divorce or a contested divorce has a lot to do with how much your case will cost and whether or not you have to hire an attorney at all. (Yes, it’s true; in some cases, it is possible to move forward without hiring an attorney!)

In an uncontested, no fault divorce…

In an uncontested divorce, you move forward without regard to fault based grounds. That could mean either that you have fault based grounds you could use and choose not to use them, or that there are no fault based grounds to allege. In an uncontested, no fault divorce, you draft and ultimately negotiate a separation agreement, which is a legal contract that formally divides all the assets, liabilities, and responsibilities between the two of you.
In this type of case, it’s probably best to hire an attorney as soon after separation as possible, if that’s the route you’re planning on taking. It often takes several negotiations back and forth to get a draft that everyone is comfortable with signing, and there’s no advantage to delaying the inevitable. (In fact, there’s a distinct disadvantage if it ends up taking longer than you expect, and your divorce is drawn out by a couple extra weeks or months.)
If you’d prefer to move forward without an attorney, that might be a possibility, too. It’s a little bit outside the scope of this article, but if you want more information about do it yourself divorce, click here.

In a contested divorce…

Whether your divorce is fault or no fault based, if you can’t agree about how things are going to be divided, you’re going to have to go to court and let a judge decide. These divorces are the most complicated and the most time consuming, and it’s probably also not going to be possible to represent yourself. Technically, these divorces are super difficult, and without a thorough and in depth knowledge of the court system and Virginia divorce law, you won’t be able to keep up with the case.
A lot of times, in contested cases, we have very little control over the timeline. If your husband has already filed a complaint and you’ve been served, you only have 21 days in which to respond. In an uncontested, no fault divorce, on the other hand, there aren’t specific time periods during which you must respond. Because of the time limits, you’ll want to be sure that you know what’s going on and that you’re prepared to spring into action, even if you’re unexpectedly served.
Most of the time, these divorce cases start during separation, too—but often they take even longer than uncontested, no fault divorces, sometimes even running longer than the period of separation. In fact, it’s not uncommon for a contested divorce to take a year and a half or two years (some, even take longer than that.)

How much does it cost?

When it comes to hiring an attorney, it can be difficult to know, ahead of time, exactly how much something is going to cost. When it comes to divorce cases, attorneys (especially in our area) are loathe to charge a flat fee; instead, they often ask for retainer fees, and then bill hourly as work is done. Why? Well, it’s because, in most cases, it is very, very difficult to estimate ahead of time exactly how easy or hard a particular case is going to be. You’ve got to keep in mind that, most of the time, when someone walks into our office, we’re really only hearing a small part of the story. It’s hard to estimate costs when, at most, you know one side of the story—and, besides that, you don’t know anything about husband’s temperament or even about the attorney he may eventually hire (which, trust me, can make a huge difference in overall costs).
Most family law attorneys in our area charge an initial consultation fee to meet with the attorney. Our initial consultation fee is $285, which is kind of right smack dab in the middle of where all the other local area attorneys are.
Then, in the initial consultation, you’re given a retainer agreement which specifies exactly how much your retainer will be. Each attorney is responsible for setting his or her own retainer fees, based on how difficult they imagine the case will be. I can provide ball park figures for retainers, but understand that yours could be more or less than what I’ve specified here. Generally speaking, separation agreement retainers start at $2,500, and contested divorce retainers start at $5,000 or $7,500.
A retainer fee is a sum of money that must be paid up front in order to open your case with the office. The money is put in an escrow account with your name on it, and then money is billed from that account as work is done. It’s your money until work has been done and it has been billed to you; because it’s your money, it’s refundable to you at the end of your case.
As work is done on your case, it’s billed to your escrow account. Most law firms require that you keep a certain amount of money in your escrow account at all times; more may be required to be in reserves if you’re, for example, preparing to go to trial than if your separation agreement is signed and you’re only waiting to finalize your uncontested divorce hearing.
Keep in mind that often the best way to estimate how much a case is going to cost is to compare attorney hourly rates. Attorney hourly rates vary pretty dramatically; oftentimes, they vary a lot more than the average retainer amounts. If you’re looking to save money, the best means of comparison is often by looking at what an attorney charges per hour. Keep in mind, too, though, that elevated hourly rates are often related to the experience of the attorney. In our office, for example, attorney hourly rates range from $200 an hour to $425 an hour—which makes a huge difference when you’re looking at how many hours that gets you on a typical $2,500 separation agreement retainer!
For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys as you prepare to separate, give our office a call at (757) 425-5200.