Virginia Custody Retainer

Posted on Jan 29, 2020 by Katie Carter

We get lots of frantic inquiries from women about pro bono divorce and custody services – something we really don’t offer (and, frankly, that no other law firm that I’m aware of really does offer, either).

Pro bono is a hard thing, for a lot of reasons. Cases are expensive and time consuming; we really couldn’t help that many people anyway, given the nature of how truly demanding family law cases are. Custody, too, is challenging, because between initial determinations and modifications of custody, visitation, and child support, the same clients can keep coming back repeatedly over the years.

It really isn’t fair to paying clients, either. But, really, probably the biggest drawback to pro bono custody representation is that you can’t help that many people. ONE client can be a huge drain on your time and resources, and it’s really not feasible to do that repeatedly. It’s a big part of why we’re so aggressive about the resources we offer for education for Virginia women. Our books and free reports and seminars s and extensive library were all generated to help educate women, like you, facing divorce and custody cases. So much of how much a case ultimately costs and how good the results really are have to do with the choices that a client or prospective client makes in the beginning.

And, for most people, it’s not that they can’t afford to pay anything at all; it’s that they’re scared what the case could cost, in the long run, and their ability to pay for it. You don’t want to write a blank check; and, anyway, who can afford to? Almost without exception, in our practice we’re dealing with regular people with finite resources, not multimillionaires to whom money is no object.

Maybe that helps to hear. The women we represent are regular working women – nurses, teachers, marketing professionals, stay at home moms, therapists, whatever – and they don’t have unlimited budgets. In fact, for many of them, their divorces have reduced dramatically the amount of money they have on hand. It’s not that they can’t pay, it’s just that they can’t pay any amount of money.

And, though that’s hard to admit when it comes to a custody case, there has to be a cap, right? It’s easy to say, ‘Oh, they’re my children, I’d do anything,’ but you can’t spend to the point that you lose your home – how can you win custody if you’re living in your car? It’s a real concern, and one to be aware of as you embark on a custody case.

So, today, I’m here to talk to you a little bit about retainers and how they often work in custody cases. We’ve talked about typical divorce retainers before, but a custody case can be separate and distinct from a divorce, and can raise unique issues related to custody and not divorce.

We’ve talked, too, about how to save money in both divorce and custody cases – something that I think you should consider. There are a lot of decisions to be made in these cases, and, if you’re thinking about it now, you’re already ahead of the game.

But retainers are another part of the divorce and custody case process that you should be somewhat familiar with. A retainer is not a flat fee; it’s an amount of money that goes into a trust account (or escrow account, whichever term you’re more comfortable with – it’s the same thing) with your name on it. The money is yours, and it stays yours, unless and until work is done on your case. At our firm, everything that we haven’t billed is 100% refundable to you at any point – if you and your child’s father work things out early, if you reconcile (in the case of a divorce case), if you decide to hire another attorney, if the court is divested of jurisdiction, if the case is appealed, or if you decide not to pursue the case any further.

I always tell my clients that they’re in the driver’s seat. I make recommendations, and I have to follow the rules from the courts (like, if there’s a deadline, I can’t just not respond because you don’t want to spend any more money, or because you’re in the process of hiring a new attorney – I HAVE to follow those rules, regardless), but as far as methods and choices made during the process, it’s a lot up to you.

In extreme cases, if clients do something that I think is really bad or will be detrimental to their case, I have them sign letters where they acknowledge that a particular action is against legal advice. But, it’s your life, it’s your kids, its your child’s father – you know some things better than I do, even despite my familiarity with Virginia law, the courts, the judges, the guardians ad litem, and opposing attorneys.

A retainer fee is set based on the type of case.

A contested case, for example, will almost always have a higher retainer amount than an uncontested case.

Though it’s always up to each attorney to set her own retainer amounts, we often base the amounts we quote our prospective clients on how difficult we believe the case will be. Contested retainers usually begin at $5,000, and go up from there.

Basically, if court is required, you’re looking at about a $5,000 minimum retainer. Keep in mind, too, that if your case begins in juvenile court, it can be automatically appealed to the circuit court – which could result in needing two, separate contested retainers to handle custody first at the juvenile court level and then, second, at the circuit court level.

You can also have a custody case at the juvenile court level, and then a divorce filed at the circuit court. In that case, where the two are going on simultaneously, you wouldn’t have two trials – the juvenile court would be divested of jurisdiction once the divorce was filed in circuit court. So, although you might retain for custody, visitation and/or child support, your case might end early – without a trial – in the juvenile court and then you’d have to retain for a divorce in circuit court.

Uncontested retainers are much less. Not only that, but overall costs are much less, too. Regardless of whether a case is in or out of court, in family law cases you typically pay your attorney’s hourly rate on a time expended basis. So, if something takes half an hour, you pay for half an hour of the attorney’s time.

In that sense, in-court time is no more expensive than out of court time – but out of court cases tend to resolve more quickly, and with less time expended. Partially, that’s because the court hasn’t imposed requirements (like, that you must attend mediation or a judicial settlement conference before a trial date can be set), and partially its because these cases are just less contentious to begin with. Less time and less difficulty means less money spent!

OF course, it isn’t always possible to resolve things on an uncontested basis, but you should understand that there is often a pretty steep cost differential there.

Since a retainer fee isn’t a quote for total overall costs (that’s not really possible, since we never know what a case might look like ahead of time), it is possible that, in either case, you hire only to settle your case right away—in that event, most of what you paid would then be refunded! So, even though a retainer fee can be a deterrent to retaining a particular attorney, if it’s set too high, it doesn’t really have a correlation to total overall costs.

I often tell clients that a better way to actually compare costs between attorneys is to look at the attorney’s hourly charge. Rather than looking at a retainer fee, look at how many hours your retainer will get you – and compare that against other attorneys. It’s never a perfect comparison; different attorneys have different experiences from handling different cases, are more familiar with some courts than other courts, and so on – but it’s a better basis than from looking at the retainer fee alone.

Make sure to read the retainer agreement, too. It’s a legal contract between you and the law firm, and it sets forth how billing and other important things will work. Rather than risk being surprised later, it’s better to familiarize yourself with the process now.
For more information or to schedule a consultation, give our office a call at 757-425-5200.