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 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, how attorneys bill for the work that they do, the options if you want to do it yourself, the difference between contested and uncontested cases, and 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.
Initial Consultations
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.
What are my alternatives?
You don’t necessarily have to hire an attorney to represent you in your custody case. These days, more and more women are making the decision to represent themselves in their custody cases. There’s more and more information online every day, and more help than ever for moms looking for guidance filing custody, visitation, and support petitions.
Do it yourself is definitely a way to save money when it comes to custody cases. Especially at the juvenile court level, it’s possible to represent yourself, and do it well.
Of course, you have to be careful exactly who you trust—you don’t want to base your entire custody case on some nameless, faceless internet source. You need to know who wrote whatever it is you’re reading, and whether they’re even familiar with custody cases in Virginia. But that doesn’t mean that there’s not a lot of good information out there, because there is. I just think it’s important that you’re cautious when it comes to totally trusting in an internet source.
In an effort to provide solid, Virginia specific information to Virginia moms going through custody cases, we started Custody Bootcamp for Moms, an all day, intense course designed to help teach moms what they need to know about custody, visitation, and support cases in Virginia courts. At Custody Bootcamp for Moms, we cover everything from the ten all important custody factors you need to know (and the judge has to listen to), how to question and cross examine witnesses, how to give opening and closing arguments, how to work with custody evaluators and guardians ad litem, when to sit, stand, and how to address the judge, what to wear, when to make objections to keep his bad evidence out, what to do to help make sure your good evidence stays in, how to prepare a trial notebook, and more. The seminars are taught by Kristen Hofheimer, and are offered quarterly, in January, April, July, and October. Each seminar lasts 6-8 hours (but Kristen will stay until the last woman’s last question is answered), includes lunch and an information packed notebook, and costs $197 to attend (which is less than the cost of an hour with a moderately priced local attorney).
For more information, or to sign up for our free report, “Can I REALLY Represent Myself in a Custody Case?”, click here.
Do you really think I can do it without an attorney?
Well, that depends. Lots of people can, but there’s no doubt that representing yourself requires you to do a lot more work than you’d have to do if you hired an attorney to represent you.
Some cases are better candidates for do it yourself options than others. Cases at the juvenile court level, specifically, are usually great if you’re wanting to do it yourself. Why? Well, anything decided at the juvenile court level is automatically appealable to the circuit court. It’s an appeal “de novo,” which means that the case will be completely reviewed. None of the evidence or testimony or even opinions voiced by the judge will come up to the circuit court with you. Your case will be heard all over again, and re-decided by the circuit court judge.
Because it’s appealable, lots of moms decide to try to represent themselves without an attorney at the juvenile court level, knowing that, if things don’t go the way they hoped, they can hire an attorney for the appeal.
If you’re in the circuit court already, appeal is more difficult. You’d have to appeal to the Virginia Court of Appeals, and, at that level, the court only reviews your case for mistakes of law—not mistakes of fact. All the witness testimony, evidence, and the judge’s opinions from the circuit court would come up with you, and would be reviewed by the judge. At that point, the judge would only review the record provided by the lower court—and any objections you noted—for mistakes of law. The judge won’t ask you to provide more insight into the situation, or to tell how it made you feel—the judge is looking at the law only, and not whether the facts were misinterpreted.
You can represent yourself in circuit court, but it’s riskier, because your ability to appeal isn’t as helpful. You can appeal, but your likelihood of success is much less.
If you’re considering representing yourself in a divorce action, that’s fine, too. Many women these days find that they are more interested in representing themselves than in hiring an attorney for a number of different reasons. If your divorce is uncontested, it’s definitely possible to represent yourself. If it looks like your divorce is going to be contested, then you may want to at least talk to an attorney before you move forward. Divorce is a fairly complicated process, and you may find yourself quickly out of your element in the court system.
I want to represent myself, but I’m scared I’ll make a mistake.
The good news is that, even if you don’t want to hire an attorney to represent you, most attorneys are willing to meet with you as a consultant in your case. Most of the time, if you pay their hourly rate, they’ll met with you occasionally and give you advice about how to move forward. That way, you can get the advice and counsel of an attorney before you do anything, and can be sure that you’re prepared and know what to expect.
It’s not foolproof, of course, but it’s a good way to get some advice and prepare for what’s coming. It’s certainly better than walking in to court with no idea of what’s to come.
What about Legal Aid?
If you really can’t afford to hire an attorney, you may want to talk to Legal Aid. They have specific guidelines about the cases they can take, and the amount of money that you can earn in order to qualify to receive services. In most cases, from my understanding, even if you qualify to receive services, they provide an informational meeting with one of their attorneys—but that doesn’t necessarily mean that they’ll take your case.
They rarely take any contested cases at all. Still, it’s worth a shot. If you’re really unable to afford to hire an attorney, you should give Legal Aid a call and see what they’re able to do for you.
What specific choices can you be making to help keep your case as cost effective as possible?
Now that we’ve talked a little bit about how attorneys bill, what it costs to hire one, and what your alternatives are if you don’t want to hire an attorney, let’s talk about the choices you can be making for yourself, to help make your custody case a little bit easier.
Whether you’re talking about a divorce case or a custody case, it can be either contested or uncontested. A contested case is one where you can’t reach an agreement, and a judge has to do it for you. An uncontested case is one where the two of you are able to make a decision together about how to work things out, and you enter an agreement for yourself.
Contested cases are much more expensive than uncontested ones. Even if it seems impossible that you and your child’s father will reach an agreement, financially it definitely makes the most sense.
A lot of times, hiring an attorney to help you negotiate an agreement can make something that you thought nearly impossible happen. It’s not 100% guaranteed, of course—and, after all, you know your child’s father better than I do, but it’s a good way to try to reach an agreement.
What about mediation?
Sometimes, mediation is also a good option.
Mediators, in most cases, aren’t attorneys. It’s not their job to help tell you whether an agreement is a good agreement, whether a judge would give you more or a better agreement, or whether you should sign it. It is a mediator’s job to help make sure you reach an agreement. You and your child’s father would share a mediator, so no one is looking out for your best interests. Since you’re sharing a mediator, it’s often much cheaper than hiring an attorney—but you should definitely exercise some caution if you decide to use one.
It’s a good idea to talk to an attorney both before and after you go into mediation. Beforehand, you can talk to an attorney to get a good idea of what a reasonable agreement would look like. That way, when you walk into mediation, you go into it with an idea of what you’ll accept—of what’s a really good agreement, and what’s something that you wouldn’t be willing to accept. Afterwards, you can go back to see the attorney to make sure that the agreement says what you think it says, and is worth signing. (Remember, once you sign an agreement, there’s really no going back, so you definitely want to be sure that it’s worth signing before it’s too late.)
It’s best to begin your divorce with the end in mind, so it’s always a good idea to keep your finances at the forefront. Having the conversation with your attorney can go a long way, too, because your goals and priorities will help inform the attorney’s choices.
You have a role in how much things cost, too. Focusing on the issues, trying to work with your child’s father to come to a mutually agreeable arrangement, and keeping things uncontested can all dramatically impact the cost of your custody case.
As always, we’re here to help. If you need help figuring out what your next steps should be, whether you’re a good candidate for do it yourself, or want to hire an attorney to help you navigate through your custody case, give our office a call at (757) 997-7731.