First and foremost, let me say this loudly and clearly: I am not a representative of Legal Aid, have never worked with Legal Aid, and can’t speak for Legal Aid as an organization.
That being said, when it comes to Virginia divorce and custody cases, there are often a lot of things going on behind the scenes, both in the Legal Aid world and in the world of private practice (where I reside), that most people don’t really know about.
Can’t I get an attorney to take my divorce and/or custody case pro bono?
There’s also a general misconception that free legal representation – pro bono legal representation – is a thing that’s readily available.
Pro bono legal work is most definitely a thing, but it might not take the shape and form that you expect. What I mean by that is that, by and large, most attorneys do not take clients on for an entire case and just represent them for free for as long as necessary to resolve that one case. Many attorneys volunteer to do things, like through the CLASS program in the Virginia Beach Juvenile and Domestic Relations District Court. The CLASS program, which (if I recall correctly) stands for Concerned Lawyers Advocating Spousal Safety, provides lawyers for litigants seeking protective orders, is only available on specific days, you don’t get to choose an attorney, and you often only have a few moments with the attorney before your case is called. In many cases, there are 15 or more docketed cases on a particular day, so you can imagine the chaos.
There are also attorneys who do pro bono work by providing education to the public. For example, at our firm, we teach monthly divorce seminars on the Second Saturday and Third Tuesday of each month. Though there’s a small fee for attending, that fee is administrative in nature and isn’t paid to the attorneys for their preparation or presentation. We consider our presentation part of our pro bono service to the community.
Simply put, taking on one entire case is just too big a responsibility for most attorneys to do, especially if it’s a contested case. Contested cases can, in some cases, go on for years and cost tens of thousands of dollars. It’s a huge commitment.
Aren’t I entitled to legal representation if I can’t afford my own attorney?
There’s no requirement that you be provided with counsel in a CIVIL case if you can’t afford it; the Constitution only provides representation for people who’ve been charged with criminal offenses. A civil case is basically anything that isn’t criminal, and divorce and custody cases definitely fall clearly on the civil side.
To put it simply – no. You are not entitled to free legal representation in your family law case.
Why won’t Legal Aid help me? I can’t afford a lawyer.
Legal Aid is a complicated thing. It’s funded by the state, which is to say that it’s profoundly underfunded. The attorneys there are swamped with cases. They’re doing the best they can, but they’re spread so thin.
In general, Legal Aid attorneys have strict income guidelines. They’ll often give free consultations – and additional information, to the extent that they can – to most everyone. But that doesn’t mean they’re going to be able to take on an entire case, from start to finish, for nothing.
For the most part, Legal Aid attorneys try to take uncontested cases. Though they handle the occasional contested case as well, contested cases carry a MUCH higher cost. Since there’s already a limit to the amount of funding that they have access to, they can’t further limit their ability to help by only taking on contested cases. They wouldn’t be able to handle many cases at all, compared to uncontested cases where they can help a much larger number of people.
Simply the fact that you’ve been abused or because you have children involved does not qualify you for free representation. In fact, the more complicated the case, the less likely Legal Aid will really be able to help.
If you’ve tried to get help from Legal Aid and been turned away, it’s likely because your case will require more resources than the Legal Aid attorneys will be able to allocate to your case to help you. Generally speaking, the ethical rules that govern our representation of clients are SO STRICT that we can’t just take cases without being sure that we can offer a certain level of representation. If the attorney can’t take on the case because of her workload or the resources that she has allocated to her, she just can’t take it. (Though, I am sure, she is incredibly sorry about it – no one goes into Legal Aid work without a sincere desire to help people in terrible circumstances!)
Can I make my husband pay for my lawyer? He earns more than I do.
Also, probably no. The court usually feels that each party is responsible for paying for his or her own attorney’s fees.
It is possible that, in pendente lite, you could ask for an advance of attorney’s fees – but you’d likely need to be able to show that there’s a bank account or asset from which you could pull those funds. You’ll also need to expect that this advance will be counted against you during equitable distribution later on.
It’s also possible that you could ask for attorney’s fees as it relates to your husband’s bad behavior, to the extent that he violated a law or court order and required you to incur additional expense. To be clear: you will not receive ALL of your attorney’s fees; if you get fees at all (which is an uphill battle already), it’ll likely only be to the extent that you had to prepare for a show cause or a motion to compel.
I know these aren’t good answers – but you probably already knew that, didn’t you? If you tried Legal Aid and you’ve already been turned away, you already know that this avenue that you hoped would provide some relief for you is not going to be able to do that.
It’s frustrating, because divorce and custody cases are expensive. There’s definitely an issue when it comes to access to justice. But it’s a big issue, and not one that a single Legal Aid or private sector attorney can tackle on her own.
I can’t offer you pro bono representation. I can, though, offer you a copy of our divorce book, encourage you to attend our upcoming divorce seminar, or help you find our library full of resources. I can point you in the direction of Norfolk’s Pro Se Divorce Manual, which may help, too, and the Virginia Court’s self help guide, which includes a section on divorce.
There’s not a perfect answer, because I don’t know of anywhere that’ll take on an entire case for free, no matter how worthy the cause. But I hope that the education and the resources can help you at least understand a little better, whether you ultimately decide to try to represent yourself or to hire an attorney to help you navigate the process.
For more information, to request a copy of our book, or to attend a seminar online, give us a call at 757-425-5200.