You’re worried about the safety and well-being of your children, and you’re willing to do anything possible to help give them the childhood they deserve. Still, your pockets aren’t bottomless. You can’t afford to litigate over custody until every last cent is gone, and what good would that do, anyway? Without some money left, you can’t afford to keep a roof over their head and food in their bellies. How is THAT in their best interests? Not only that, but you’re committed to providing them with more than food and shelter. They’ll need internet, to complete their many school projects. They’ll need baseball bats and swim caps and hockey sticks and tap shoes and violins and voice lessons. They’ll need school clothes and shoes. They’ll need pencils and books and rulers and notebooks and field trip fees. They’ll need all sorts of things, and they’ll need them for a long time.
It’s terrifying to think of all the things they’ll need, and wonder how much it will cost to get the custody and visitation arrangement in place that will suit their best interests. You’ve probably heard horror stories about custody cases—dragging on forever, damaging children, and costing a fortune. You’d like to start saving for college—but instead, you’re gearing up to pay a retainer to an attorney.
In this two part blog post, we’ll talk about how money works in a custody case. We’ll talk today a little bit about how attorney’s bill, including how the initial consultation works, what a retainer agreement is, how a retainer works, and how attorneys bill for the work that they do. Then, on Wednesday, we’ll talk more about your options if you want to do it yourself, the difference between contested and uncontested cases, and what cases are big red flags.
In my experience, the best way to save money is to make a plan ahead of time that takes your goals into account. Obviously, your biggest goal is to get the custody and visitation arrangement in place that will be best for your children, but, additionally, cost has to factor in. It’s a good idea to keep cost in mind at all stages in the process, and have a conversation with your attorney that addresses your concerns.
So, let’s talk about what costs money in a custody case, and what you can do to save money while you’re going through one.
How do attorneys bill?
The majority of your expenses are going to go to be in attorney’s fees, so let’s talk about how attorneys handle money.
An initial consultation is your first appointment with your attorney. In your consultation, usually you’ll talk to your attorney about your case and the attorney will present you with your options. You can identify your specific goals, or talk about your concerns, and the attorney will work with you to come up with a proposed plan that addresses those goals and concerns. It’s a collaborative process, so that both you and your attorney discuss options back and forth, and come up with a custom tailored solution that addresses your needs as effectively as possible.
Most family law attorneys charge a fee for an initial consultation. Many people aren’t aware of this, because attorneys in other areas of law often offer free consultations, and that’s what people see.
Most often, you see free consultations offered with personal injury attorneys. But personal injury cases are very, very different from family law cases. Why? Well, mostly, because personal injury attorneys take cases on a contingency fee, meaning that they take 30% (or some other figure, depending on what you agree on in your retainer agreement) of your total recovery. The personal injury attorney is always looking out for that big, multi million dollar case, and they’re willing to offer free consultations to interview potential clients and find out whether their case is worth taking.
In a divorce case, there’s no insurance company waiting in the wings to pay out a multi million dollar settlement. There’s only you and your husband, and the money you had during your marriage—which is now going to be divided in two.
Not only that, but it’s against our ethical rules for family law attorneys to take cases on a contingency basis. We could lose our law license!
So, family law attorneys are looking at cases differently than personal injury attorneys. We’re not interviewing YOU to find out whether you’ll earn us enough money; we’re trying to give you an information-packed consultation that gives you an idea of your rights and entitlements, and helps you come up with a plan of action that address your goals and concerns. Since our focus is giving you as much information as possible, most law firms do charge for this appointment.
Still, you should look at it as an opportunity to determine all your possible options and alternatives. Ask questions, get answers, and figure out what your next steps might be.
After the initial consultation, what happens?
After an initial consultation, your attorney will present you with a retainer agreement. A retainer agreement is a legal contract that lays out what will happen in the event that you decide to retain the law firm to represent you in your custody case.
Specifically, a retainer agreement tells you how much you’ll have to pay to hire the attorney. The amount of money is called a retainer. In most cases, a retainer is a sum of money that is paid up front. It is paid to the law firm, and then goes into an escrow account (or a trust account) with your name on it. As the attorney does work and bills on your case, the money is taken from the trust account and moved to the law firm’s operating account. Until the money is earned by the attorney, it belongs to the client. Any unused money is refunded to the client at the end of the case. In the event that the client runs out of money, the trust account has to be replenished. Most law firms establish a minimum fee security deposit (which would be set forth in the retainer agreement), and the trust account is supposed to stay at that level at all times.
A retainer agreement sets forth all sorts of other things, too. It tells you what attorneys, paralegals, and legal secretaries will be working on your case, including their hourly rates. It will tell you exactly how you’ll be billed (and if there are any minimum billing conventions), how often you’ll receive a statement, and how the law firm works. It sets forth the basic expectations of the attorney, and what you can expect the attorney to do for you.
Like any legal contract, you should make sure you’ve read it and understand it before you sign it. Ask questions. They’re usually pretty straightforward, but if you’ve never hired an attorney before, you may be unaware of what you can expect. That’s okay. Now is the time to ask questions and get the information you need.
So, how does the attorney actually bill for the work that they do?
Most family law attorneys bill on an hourly basis. That means that, for whatever work they do, they bill the portion of the hour that it took them to accomplish that task.
Attorneys have a specific hourly rate, and their hourly rate is based on their level of experience. In the Hampton Roads area, most attorneys have an hourly rate that ranges from $150-500 per hour. So, obviously, the amount of money that your case will cost depends a lot on the attorney you hire.
What if I can’t pay the retainer fee up front?
If you’ve met with an attorney, read the retainer agreement, and are considering hiring the attorney to represent you, you’re probably wondering what your next steps should be. You’ve seen the retainer amount, and it probably seems like a lot. It’s hard to estimate ahead of time exactly what a retainer will be (because, in most law firms, the retainer amount is up to the attorney setting it), but it’s probably easy to assume that it will be a minimum of a couple thousand dollars. Depending on what type of case you’re facing (whether it’s custody, visitation, and support at the juvenile court level, or an appeal of a previous juvenile court decision, a modification of an earlier order, or a custody case that’s part of a larger divorce action in the circuit court), the costs associated with your case can be very different.
Most law firms do require that their retainer fees be paid up front, before they can open your case. Some law firms offer payment plans, but it’s probably best to ask yourself whether, if you can’t afford the retainer fee, the law firm is really a good fit for you.
Stay tuned, because on Wednesday, we’ll talk a little bit more about what your alternatives are if you don’t want to hire an attorney—including do it yourself, mediation, and whether Legal Aid will be able to help. We’ll talk about contested and uncontested cases, and also what cases present obvious, automatic red flags.
If you have questions or need help preparing for your custody case now, give our office a call at (757) 425-5200.