Can I make my husband pay for my Virginia divorce?

Posted on Oct 9, 2015 by Katie Carter

Whether you’ve already met with an attorney or not, you’re already aware that hiring an attorney to represent you in your divorce case is expensive. It’s not unheard of at all for retainer fees to start at $2,500 or even $5,000 (especially if it looks like your divorce is going to be contested) and go on up from there. In most law firms, at least, most reputable law firms in our area that I know of, this amount has to be paid up front to start your case. And, not only that, but it’s not a flat fee; it’s an amount of money that goes into an escrow account that the attorney will bill from as work is done. If the attorney runs out of money, he or she will send you a letter (or make a call to you) asking you to replenish your account.
Very few attorneys (if any) do work on a flat fee arrangement. It’s difficult, at the beginning of a case, to estimate exactly how difficult and time consuming a case will be. Most of the time, we set retainers after just one meeting with a client, without any real information about husband or the attorney he hires (both of whom can have a dramatic impact on the overall costs of your case). Most attorneys bill hourly, as work is done, and they do their billing from a retainer. The retainer is, basically, just insurance that the attorney’s fee will be paid.
Not only that, but separating comes with its own set of expenses, separate and apart from any fee you may pay to retain an attorney to represent you. If you’re moving out, you’re probably concerned about security deposits or qualifying for a mortgage, plus you’ll have to replace about half of your household items, since your husband will get to keep some of them. If you add it up, the costs can rise really fast, which can make your head spin.
Women ask me all the time whether they’ll be able to get their husbands to pay their attorney’s fees. I can understand why, especially if he has historically been the breadwinner, or if he was the one to initiate the divorce. Honestly, though, it’s usually pretty unlikely.
Technically, you don’t have to have an attorney to move forward with your divorce. Whether it’s litigated or uncontested, you’re free to represent yourself in the Virginia courts. Of course, whether that’s something you’re willing to do is entirely up to you.
That’s just how the judge feels—it’s up to you. You CAN represent yourself, should you choose. You can also hire an attorney, should you choose to do so. Whatever your choice, though, it’s entirely up to you. Since you’re making the choice, most judges feel like it’s okay to expect that you’ll be responsible for the financial costs associated with that choice. If you hire an attorney who charges you a $10,000 retainer, surely you’re okay with that cost—right? Because you paid it. Or, at least, that’s how most judges in Virginia feel. It’s not fair to hold your husband financially responsible for a decision that you undertook on your own.

Of course, that doesn’t mean we never get husbands to cover the costs of a wife’s attorney’s fees. That’s one of the beautiful things about a separation agreement. A separation agreement is a legal contract that divides all the assets and liabilities in the marriage between the parties. When it comes to contracts, there’s a lot of freedom to be creative. Almost anything (as long as it’s not illegal or something) that we write into the agreement is enforceable, as long as we can persuade him to sign it. So, if you’re thinking that it’s possible to negotiate an agreement with your husband (rather than going the litigated divorce route), we could certainly send a draft agreement to him that includes a provision requiring him to reimburse you for your legal expenses. Of course, to draft the agreement, you’d have to pay up front to retain the attorney. But, still, it’s possible to have a provision like that so that your husband would then have to reimburse you for what you’ve spent.
Will he sign it with that provision in it? I don’t know! You know him better than I do, so your guess is certainly better than mine. We can’t make him sign it, but it’s certainly possible. I’ve seen it happen before.
If he doesn’t sign an agreement, do we have any other options? Not a whole lot, to be honest. If we go to court to litigate your divorce, it’s all but certain that the judge will order that you’re each responsible for your own attorney’s fees.
Sometimes, we are able to get attorney’s fees, but it’s normally when the other side hasn’t done something that the court has ordered it to do. And even then, it’s not like we get all of our attorney’s fees; we usually get the portion that we had to spend to get him to do whatever the court ordered. Let’s talk about an example. Discovery is the legal process we use to figure out what assets and liabilities there are to be divided between the two of you. If we request something, he has 30 days to provide a response. If he doesn’t respond, we can go to court on a motion to compel. Usually, on the first motion to compel, the judge won’t award attorney’s fees, he will just order that your husband has to comply within a certain time frame. If then he still doesn’t respond and provide us with the requested information, we can make a formal request for attorney’s fees. Judges normally want to see a breakdown of the attorney’s fees, at least as it relates to your discovery requests and the motions to compel to get the answers, and they may award you attorney’s fees in that amount. If the judge thinks you spent an excessive amount, he’ll reduce the amount of attorney’s fees awarded.
It probably doesn’t seem very fair, but that’s just the way it is. We can ask for attorney’s fees, and we usually do, just in case, but they are almost never awarded. Keep this in mind and make sure to ask your attorney to ask for fees, but don’t get your hopes up. You’re better off selecting an attorney that you can truly afford than hiring one that is a little too pricy, especially if you’re hoping that your husband will contribute. It’s fairly likely he won’t.
For more information, or to schedule a consultation with one of our experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.