It’s hard to estimate the cost of a divorce ahead of time, because there are so many factors that affect it. In a lot of cases, the choices you make can have a direct impact on the cost of your divorce. Sometimes, the attorney you hire affects how much your divorce will cost. Still, there are other things, like how difficult your husband or the attorney he hires are, that can drive up costs and are beyond your control.
If you’ve ever wondered how much divorce costs, you’re in the right place. This is a question I’ve had to answer time and time again, so I know there are lots of people out there who are wondering the same thing. So, I decided to write this article about legal fees in divorce and, since I had so much to say, I turned it into a two part piece. Today, we’ll talk a little bit about what you choices you can make in order to keep your legal fees low, how much a divorce really costs, and what questions you should ask your lawyer. Keep in mind that, with respect to some things, there are a lot of choices that you can make that will help to ensure that the process move a lot quicker and cost a lot less.
Divorce costs are varied, and there are a ton of different factors that come into play when you start talking about exactly how much you can expect to pay.
Probably, you’re most concerned with the choices you can make that will keep your divorce as affordable as possible. Like with anything else, you really can’t control what other people are doing, even though it sometimes has a negative impact on you. You can’t control how difficult your husband will be, or how litigious his attorney is. Will your husband refuse, over and over, to sign your separation agreement? Will his attorney try to file a bunch of motions to drag you into court, costing you time and money and not getting you any closer to settlement? Hopefully not, of course, but all you can control is yourself, and the best way to help promote a quick, easy, efficient and, above all, cost effective divorce is to keep the end in mind at the beginning.
What choices do I need to make at the beginning to keep my divorce cost-effective?
Play nice before and during your divorce
You would be surprised how much control you have over things from the very first moment you decide to get divorced. No matter what happened to you in your marriage to bring you to the point where you decided to end things, it hasn’t been easy. There are hurt feelings, anger, and resentment. This is something that is immediately obvious in almost every marriage that is ending. You’re not alone in the way that you’re feeling, and you’re not wrong to feel the way that you do. Still, you have a choice in how you react to your feelings, and the best way to react, especially if you want to save money on your divorce, is calmly and rationally.
I know, I know. It’s really hard! Whether you’re the kind of person who feels like you want to yell, scream, cry, or withdraw from the world completely, it’s incredibly difficult to ignore your emotions and behave calmly and rationally, especially if he isn’t behaving that way himself. Still, for the sake of your divorce (not to mention you own sanity and the sanity of any children the two of you may have together), it’s best to try to stay as calm, cool, and collected as possible.
In my experience, the way a couple reacts to the upcoming divorce has a lot to do with the choices that are made in the beginning. If you’re ugly and aggressive, he’ll be ugly and aggressive back to you. It may start out as an argument over smaller things, like how your personal property is going to be divided. It may include some nasty name calling, or belittling insults. But, from there, the ugliness only expands and gets more and more expensive to maintain. If he’s angry at you when he goes into his attorney’s office, he’ll be looking for someone who is ready to fight to the death in the courtroom. He’ll be saying all the things that create the kind of case that costs big bucks, like that you’re crazy and so he wants custody, and you deserted him when you moved out of the marital home and so he wants to pursue a fault-based divorce (more on that later). He’ll say that he wants to fight tooth and nail over every little thing, because that’s the way things have been between the two of you. He doesn’t want to feel like the he just showed up and got bull dozed, and you don’t want to feel that way, either.
Whatever direction your relationship has taken in the days and weeks immediately following your decision to get a divorce will probably affect the direction your divorce takes. It’s always much, much easier to establish a good divorce from the beginning than it is to start out with a bad divorce and switch it over into a good one. Once you start the name calling, bickering, and constant fighting, you pave the road for the future. Once the mistrust and bad blood exists, it’s hard to make it go away. If you can stay calm and rational, come up with an agreement about how things should be split, and speak respectfully to each other, it’s much more likely that you’ll be able to establish a cordial, respectful, amicable divorce.
Aside from the fact that amicable divorces tend to cost far, far less than litigated divorces, there are other benefits to you (and your children) as well. Although I’m advising you to keep your anger and irritation to yourself for the sake of your finances, this is the same advice I would give you if you told me you were worried about the impact of the divorce on you or your children over the long term. The way to have the most left over to start over and to take care of the emotional health of the people involved in the divorce is to keep things as amicable as possible.
Fault versus no fault divorce
In the beginning, you’ll also have to make some big decisions about the kind of divorce you want to get. Yes, there is a difference!
In Virginia, we recognize fault based and no fault divorce. Can you guess which is the most expensive? It’s probably pretty obvious. If you want to allege (and prove!) fault, it’s going to cost more time and take more money.
The fault based grounds we recognize in Virginia are adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. We’re not going to go into a ton of detail about each of these things here, but if you’d like more information on fault based divorce, just click here to be redirected to another article like this one with more information on the subject. Each of these things has a specific burden of proof, meaning that you have to provide the court with a certain amount of evidence to convince the judge that you’re right and your grounds do exist.
Even if your husband admits that he committed one of these things, you will still have to prove it to the judge. There is no such thing as him signing a separation agreement admitting that he did what you said he did, and therefore it is proven and you get your divorce with those grounds listed. You have to actually go to court and present evidence in order to prove it to the judge.
A no fault divorce, on the other hand, does not require that you go to court at all. It doesn’t mean that no fault based grounds exist, it just means that you have decided to move forward without using them as a basis for your divorce. Most no fault divorces are resolved with a separation agreement, which is a legal contract between the two of you that determines how your assets and liabilities will be divided.
Contested versus uncontested divorce
The next step is deciding whether your divorce will be contested or uncontested. Again, it definitely makes a difference! In an uncontested divorce, the parties have already reached an agreement (a separation agreement) regarding how all their assets and liabilities will be divided. Since they’ve decided these things for themselves, there’s no need to ask a judge to help.
In a contested divorce, on the other hand, the parties haven’t reached a decision regarding how everything will be divided, so a judge has to help do it for them. As you can probably imagine, going to court costs more money than settling outside of court. Your attorney has to prepare for court, gather evidence, prepare witnesses, attend various settlement conferences, and so on. It’s pretty expensive!
A fault based divorce is always contested because, at the very least, the other party can’t just agree that they committed the fault alleged in the complaint. Automatically, if you opt for a fault based divorce, you’re going to wind up in court, and that will cost you more money.
A no fault divorce, on the other hand, can be either contested or uncontested. Most no fault divorces are uncontested, but not always. Just because you don’t want to pursue fault based grounds (or if fault based grounds legitimately don’t exist) doesn’t mean that you are automatically able to reach an agreement about how everything is going to be divided.
If saving money is your goal, you want an uncontested, no fault divorce. If you want to explore other options, you probably want to talk to an attorney.
Is an uncontested, no fault divorce really my best bet? If he did something bad, won’t he get punished?
Theoretically, it is possible that your husband’s fault could be used against him when the property is divided. However, I think it’s pretty safe to say that the chances are slim and none that the property division will be changed to the point that it makes it financially beneficial for you to pursue a fault based divorce.
Think of it this way. When you watch TV or see movies about lawyers, you usually see personal injury cases. The person suing is suing a big company, with lots of money, so, at the end of the case, that person ends up with millions and millions of dollars. A divorce case is not like that. You are essentially “suing” your husband (or he’s suing you, depending on who filed first). Unless you had millions and millions of dollars during your marriage, you’re not going to get millions of dollars in your divorce. Probably what you’ll get is something pretty close to half of what you had during the marriage. The more money you spend fighting over how things are going to be divided, or trying to prove that a fault based ground for divorce exists, the smaller your half (and, of course, his half) will be.
I don’t think it’s likely that the judge will seriously “punish” your husband for his bad acts. It’s probably a safer bet to pursue an uncontested, no fault divorce, if what you’re really after is as much money as possible to start your new life afterwards.
Hiring an attorney or doing it yourself
The first big choice you’ll have to make is whether you plan to hire an attorney to represent you or you prefer to do it yourself. As you can probably imagine, your choice has a lot to do with how much your divorce will cost overall.
You should absolutely hire an attorney to represent you if your divorce is going to be contested. Navigating the court system is incredibly complicated and, although Virginia law allows a person to represent herself without an attorney, I just don’t think that I can advise that in good conscience. It takes most attorneys several years before they handle their own completely contested divorce trial, and, by that time, they have tons of other experiences to draw from in court. It would be difficult for a person who is unfamiliar with the law to effectively represent herself in court without an attorney.
If your divorce is uncontested, though, it’s absolutely possible to handle your divorce yourself. There aren’t a lot of reputable do it yourself resources in Virginia, though, so you should be very careful about what you’re using. Make sure anything you consult is Virginia-specific, effectively drafted, and provides assistance or troubleshooting help if you need it.
Only you can really decide for yourself whether you should hire an attorney. But, in case you’re wondering about what is involved, we’ll talk about it.
If you are interested in hiring an attorney, you’ll probably want to do a lot of research first. What firms have the best reputation in the area? Within that firm, which of the attorneys practice family law? Is there an attorney with special knowledge about an issue that concerns you (whether that’s custody, property division, or real estate)?
After you narrow it down a little bit, you’ll be ready to schedule an initial consultation. Usually, there’s a fee associated with the initial consultation, so don’t be surprised when you call to make your appointment.
I thought attorneys offered initial consultations for free!
There are a lot of different kinds of attorneys, and different kinds of attorneys do things differently. Most of the time, for example, personal injury attorneys DO offer free consultations. Why? Well, their practice is different. Personal injury attorneys (you know, the guys you call if you slip or fall somewhere, or who help you if you’re injured in a car accident) take cases on contingent fees. A contingent fee is a fee arrangement where the attorney doesn’t get paid unless you win something, and then he takes a certain amount of what you get (usually something like 30%). So, these guys are out there looking for the case that’s going to bring millions and millions of dollars, and they’re willing to spend an hour of their time with you because of the possible payout for them.
For divorce attorneys, it doesn’t work that way. Even if we wanted to, we couldn’t operate that way. Because of the ethical rules that we have to follow, family law attorneys can’t take cases on a contingency basis. If we did, we could lose our license to practice law.
We’re not going to take 30% of anything that you get from your husband, and there probably aren’t millions of dollars, anyway. Family law cases are very different from personal injury cases, so the way we operate is totally different. Most of the time, family law attorneys charge for consultations.
What happens in an initial consultation?
When you pay for something, you expect to receive some value. Right? Of course! So, in our consultations, we try to provide as much value to the prospective client as possible. We sit down, talk about your unique situation, and come up with a solution designed to fit your needs. We answer all your questions, discuss alternatives, weigh costs and benefits of different choices, and make sure we figure out what’s most important to you. We can’t always tell you exactly what you want to hear, but we can be open, honest, and candid about what you can realistically expect to receive out of your divorce.
We charge for the consultation, but we give a lot of value, too.
So how do I really tell how much an attorney costs?
When people call in to schedule consultations with us, they seem very fixated on what the initial consultation costs. I understand why. It’s really the only cost they can see up front, and it’s the only way they can price shop. They don’t know, ahead of time, exactly how much a retainer is going to be, so they can’t call ahead to six different law firms and find out who offers the lowest retainer. (We’ll talk more about what a retainer is in a minute).
But, the thing is, the initial consultation fee isn’t really a good barometer of what your divorce will actually cost you. Like we discussed at length in Monday’s post, a lot of the choices that you make directly impact the cost of representation. Still, the attorney (and the attorney’s law firm) set their prices at a certain level, too. If you want to find out everything you can about how much your divorce might cost you, these are the questions you’ll want to ask.
Retainer Fees
Family law attorneys set retainers. Usually they do this in their initial consultation, and it’s basically the amount you have to pay in order for the attorney to take your case. It’s not a flat fee, so it doesn’t mean that your retainer amount is how much your case is going to cost and you’ll never have to pay more than that amount.
A retainer fee is an amount of money that we put in an escrow account (or a trust account, whichever you prefer to call it) with your name on it. It’s your money, and it stays your money until we do work. We bill at a specific hourly rate (more on that later), and we transfer the money into our account as the work is completed. Whatever is left at the end of your case is refunded to you. Similarly, if we end up spending more than the retainer amount, you would be asked to replenish the balance in your account.
Just because one law firm asks for more or less money in your retainer doesn’t mean that one firm costs more than the other. Since it’s not a flat fee, your case can cost more or less than the retainer quoted. We don’t make any real guarantees with respect to fees, because we have no way of knowing (especially not in the first hour of meeting you) exactly how much it’s going to cost. Based on what you tell us, it could be more or it could be less than what we think initially. I’ve seen it happen both ways.
I can’t speak for how other attorneys in other law firms handle these types of cases, but I imagine it’s pretty similar. Still, all I can do is talk generally about how we do things. Still, understand that each attorney is responsible for his or her own practice, including how fees are set. Each attorney can set their own fees or choose to handle a case in their own way, which may or may not be typical.
The retainer amount you are quoted will be different if you’re planning on moving forward with an uncontested, no fault divorce versus a contested fault or no fault divorce. Obviously, for a contested divorce, the retainers start much higher than the uncontested divorces. Keep in mind, though, that if you hire an attorney for a contested divorce, and then your case suddenly settles, you could easily move forward with an uncontested divorce and end up with money being refunded to you.
Hourly rates
Probably a much more accurate barometer of how much an attorney really charges is his or her hourly rate. There is a lot of variation in the hourly rates of different attorneys, so that’s something worth calling around and asking. You may be charged a $5,000 retainer at any number of firms, but your $5,000 will go a lot further if you are paying an attorney with a $200 an hour rate versus an attorney with a $350 hourly rate.
What if I can’t pay the retainer?
Most firms require that retainer fees be paid up front in order to open the case. We require retainer fees so that we can be sure we’ll get paid for the work that we do. You may find a firm that is a little more relaxed about retainer fees, but it’s probably unlikely.
Attorneys aren’t miracle workers, so we obviously can’t magically make money exist. I can tell you that a lot of our clients pay their retainer fees by getting loans from family or friends, putting it on their credit cards, or even by taking a loan or a withdrawal from their retirement accounts. Financially, it’s often pretty difficult to hire an attorney.
We know and understand that it’s difficult. We pride ourselves on providing superior legal services to our clients, and we’ve worked hard to keep our costs as low and as reasonable as possible. Still, that may or may not be something that you can afford. It’s a good idea to sit down and look at your budget, and come up with a reasonable idea of what you can pay (including what you can borrow or any loan you may be able to take out). That way, when you go in to meet with the attorney, you’ll have an idea of where you sit financially and whether the retainer fee is really something you’re going to be able to pay.
If you can’t afford to hire an attorney, we offer a lot of other programs that are designed to help women in exactly this kind of situation.
Second Saturday Seminars
Our Second Saturday seminars are taught monthly, and are designed to help teach Virginia women what they need to know about the divorce process. Each seminar is taught by one of our licensed and experienced Virginia divorce and custody attorneys, who are also on hand to answer your questions about what to expect during divorce. To register or get more information, visit our website by clicking here.
Custody Bootcamp for Moms
Custody Bootcamp for Moms is a day long seminar, taught by Katie Carter, and designed to help teach Virginia moms what they need to do to represent themselves in a custody case in the juvenile and domestic relations court. It’s powerful stuff, not taught anywhere else. Walk into the courtroom with your head held high and represent yourself. You can absolutely do it. For more information, please visit CustodySeminar.com!
You do have options! Whether you choose to hire an attorney or do it on your own, we’ve provided the resources you need to do a good job and feel confident. Whether you’re drafting legal documents or preparing for a hearing in front of a judge, we can help make sure you’re prepared and savvy enough to handle it. Good luck!