What is a retainer agreement in a Virginia divorce or custody case?

Posted on Aug 20, 2023 by Katie Carter

If you’re not familiar with the law – and, really, why would you be? – you probably find that there’s a lot in your potential upcoming divorce or custody case to confuse and overwhelm you, aside from just dealing with the regular transitions and upheaval that these types of cases can bring into your personal life.

One of the things that I tend to get a lot of questions about is the retainer agreement.  Like, what even is it?  What does it mean?  Why’s there a ‘minimum fee security deposit’ listed there?  What is covered in a retainer agreement?

They’re all super valid questions, and I’m here today to answer them.  I hope that you’ll go away with a better understanding of the process of retaining a lawyer to represent you in your family law case, and that this will be at least one less thing causing you anxiety.

What is a retainer agreement?

A retainer agreement is a legal contract between a client and a law firm that details the scope of the firm’s representation.

Once you retain – which usually involves signing the retainer agreement and paying the retainer fee outlined in the retainer agreement itself – you become a client of the firm generally and of the specific lawyer individually.  At that point, you can say, “Oh, Lorna Rhoades is my attorney,” or “I’m represented by Caitlin Walters at Hofheimer Family Law.”  Before that – even if you’ve had a consult or attended a seminar – you’re not a client and the attorney doesn’t represent you.  (Once you’ve had a consult, though, we are ‘conflicted’ out of representing someone who’d be adversarial to you, like your husband – which wouldn’t happen anyway because we represent women only.)

The retainer agreement usually includes policies of the firm, including any minimum billing conventions, details of the billing cycles, how time is calculated, what the attorney’s hourly rate is, how long physical files are kept after a case is concluded, and so on.  It’s a legal contract, like any other legal contract, so you’ll want to make sure you’ve read it, understand it, and have asked any questions that you have about it before you sign it.

What is a retainer fee?

A retainer fee is the amount of money – usually specified in the retainer agreement – that the law firm requires up front before you can hire the attorney.  Usually, an attorney is in charge of specifying what the retainer fee will be – based on specific parameters set by the firm in advance – depending on how complicated your case may be.

It is not an estimate.  It is not a flat fee.  It is just an amount of money needed up front to open the file.  Basically, from our perspective, it is a guarantee that our fees will be paid up to a certain point.

Retainer money goes into a trust or escrow account with your name on it, and it’s only billed from as services are rendered.  It’s your money – and it stays your money – until we earn it.  If the case is closed or we’re fired or you reconcile and there’s still money in trust, the remaining trust account balance is refunded to you, less whatever we’ve already earned according to the retainer agreement.

Family law attorneys bill hourly.  We do not take cases on contingent fees.  (You know the ones – the “No fee unless we get money for you!” stuff that you’ve probably seen from personal injury attorneys’ ads; it’s not that we don’t want to, it’s that we’re ethically prohibited from doing so, and we’d prefer not to lose our licenses.)

We have a set hourly rate, based on our experience.  In our area, these hourly rates range between $200 or so an hour and $500 or so an hour, though there may be outliers.

We bill in increments of a tenth of an hour (0.1, or 6 minutes) depending on how long it took to complete the task at hand.  Law firms often have minimum billing conventions, too – so a phone call, for example, may be a minimum of 0.2 regardless of how long the phone call took place (though if it takes more than 12 minutes, you’d be billed 0.3 or 0.4, or whatever amount of time was actually expended.)  This represents both the time lost in capturing time – billing for the work done and saving the email or notes from the phone call to the file – and in transition between tasks for the disruption.  There may be other minimum billing conventions; check with your firm to make sure you understand these ahead of time.

What’s a minimum fee security deposit?

A ‘minimum fee security deposit’ is a needlessly complicated name for a fairly simple concept: a minimum account balance.  At our firm, we call it a minimum fee security deposit, but what we’re referring to is a point after which you must replenish your trust account balance.

If your minimum is $1,000, once your account drops to $900, you’ll need to make a $100 payment to bring your account back up to $1,000.  You won’t have to replenish to the total amount required to retain the firm, but you do have to maintain that minimum account balance.

That means that, once your case is over, you should have AT LEAST your minimum refunded to you, if you’ve maintained it throughout your case.

What does a retainer agreement cover?

Your retainer agreement is limited in nature, and its limited to exactly what it says.  If your retainer agreement is for a separation agreement, then it doesn’t cover your uncontested divorce or anything that would involve litigation.  If your retainer agreement is for custody and visitation in the juvenile court, then it does not cover your appeal.  You could hire for a different matter, but it would require another retainer agreement.

“Divorce” is about as general as our retainer agreements get – that would encompass either negotiating an agreement, litigating a divorce up to and including a trial, and/or an uncontested divorce.  Because saying ‘divorce’ generally includes potential litigation, this is a more expensive retainer than, say, one for a separation agreement.

Because ‘separation agreement’ alone doesn’t involve filing anything with the court, you have to retain separately for the uncontested divorce when the time comes.  This throws a lot of people, but it’s common – and far, far less expensive than a ‘divorce’ retainer.  (Oftentimes, in fact, there’s already enough left because of the minimum fee security deposit that we can just rollover the funds from the separation agreement file to open the uncontested divorce one and finalize things.)

Just because you hired the firm and Sheera Herrell is your lawyer doesn’t mean that she’ll handle anything criminal that comes up, or help you resolve a landlord/tenant issue you’re experiencing, or draft your updated will – she won’t!  She – and we – handle family law cases only, but we have a really great referral network too, so still ask!  (Just don’t expect that we can handle it!)

Basically, a retainer agreement is how you hire a specific attorney to do work for you.  If you want to hire Lori Michaud, you’ll need to meet with her for a consult, sign the retainer agreement, and pay the retainer fee to hire her.  Then, she’s ‘on retainer’ and she can do work on your case, answer your emails, respond to anything that’s filed in your case, and so on.  She’ll work closely with you – after all, it’s your case, and you’re in the driver’s seat – but she’ll do most of the heavy lifting.

Want to see Ashli Pack before you meet with her or hire her?  That’s part of why we offer our monthly divorce seminars – so you can meet our attorneys ahead of time and get a sense of who you’d vibe best with.  Ashli’s great – but, then again, so are Lorna, Lori, Caitlin, and Sheera.

For more information, to attend a seminar, or to request a free copy of our divorce book for Virginia women, give us a call at 757-425-5200 or visit our website at hoflaw.com.