Chapter 3

Working With Your Attorney

Any time you make a major investment, you want to know what the cost is going to be and what you are getting for your money. Investing in quality legal representation for your divorce is no different.

The cost of your divorce might be one of your greatest concerns. Because of this, you will want to be an intelligent consumer of legal services. You want quality, but you also want to get the best value for the fees you are paying.

Legal fees for a divorce can be costly and the total expense not predictable. There are actions you can take to control the costs. Develop a plan early on for how you will finance your divorce. Speak openly with your lawyer from the outset about fees. Learn as much as you can about how you will be charged. Insist on a written fee agreement and monthly statements.

By being informed and attentive, your financial investment in your divorce will be money well spent to protect your future.

3.1 Can I Get Free Legal Advice From a Lawyer Over the Phone?

Every law firm has its own policy regarding lawyers talking to potential clients. Most questions about your divorce are too complex for a lawyer to give a meaningful answer during a brief telephone conversation.

Questions about your divorce require a review of the facts, circumstances, and background of your marriage. To obtain good legal advice, it’s best to schedule an initial meeting with a lawyer who handles divorces.

Some lawyers, as a public service or as a marketing technique, provide a free initial conference, usually limited to thirty minutes. The value of free consultations varies based upon the experience and ability of the attorney.

3.2 Will I Be Charged for an Initial Meeting With a Lawyer?

It depends. Some lawyers give free consultations, while others charge a fee, usually based upon the attorney’s hourly rate. When scheduling your appointment, you should be told the amount of the fee or hourly rate. Payment is ordinarily due at the time of the consultation.

3.3 If I Decide to Hire an Attorney, When Do I Have to Pay Him or Her?

The answer to this question varies among lawyers. Most divorce attorneys require a retainer in advance of taking any action in the case. Many divorce attorneys require a retainer at or soon after the first meeting.

3.4 What Exactly Is a Retainer and How Much Will Mine Be?

A retainer (as the term is used in the divorce context) is a deposit paid to your lawyer in advance for services to be performed and costs to be incurred in your divorce.

If your case is accepted by the law firm, expect the attorney to request a retainer at or following the initial consultation. The amount of the retainer may vary from hundreds to thousands of dollars, depending upon the nature of your case and the policies of the law firm. Contested custody cases, divorces involving businesses, and interstate disputes, for example, are all likely to require higher retainers.

3.5 Will My Attorney Accept My Divorce Case on a Contingency-Fee Basis?

No, a contingency fee is one that only becomes payable if your case is successful. In Virginia, lawyers are prohibited from entering into a contingent-fee contract in a divorce case. Your lawyer may not accept payment based upon the amount of spousal support or child support awarded or the division of the property.

3.6 How Much Does It Cost to Get a Divorce?

The cost of your divorce will depend upon many factors. Some attorneys handle no-fault divorces for a flat fee, but most charge by the hour. A flat fee is a fixed amount for the legal services being provided. Most Virginia attorneys charge by the hour for divorces. The total cost can vary from under a thousand dollars for a simple, uncontested divorce; to thousands of dollars for a case with some complicated or contested issues; to tens of thousands of dollars (or more) for a complicated or fully litigated case.

It is important that your discussion of the cost of your divorce begin at your first meeting with your attorney. It is customary for family law attorneys to request a retainer prior to beginning work on your case. Be sure to confirm that any unused portion of the retainer is refundable if you do not continue with the case or if you terminate your relationship with the attorney.

3.7 What Are Typical Hourly Rates for a Divorce Lawyer?

In Virginia, attorneys who practice divorce law typically charge hourly rates ranging from $200 to $500 per hour. The rate your attorney charges will depend upon geographical area, as well as factors such as skills, reputation, experience, and exclusive focus on divorce law.

If you have a concern about the amount of an attorney’s hourly rate, but you would like to hire the firm with which the attorney is associated, consider asking to work with an associate attorney in the firm who is likely to charge a lower rate. Associates are attorneys who ordinarily have less experience than the senior attorneys.

3.8 If I Can’t Afford to Pay the Full Amount of the Retainer, Can I Make Monthly Payments to My Attorney?

Every law firm has its own policies regarding payment arrangements. Often these arrangements are tailored to the specific client. Most attorneys will require a substantial retainer to be paid at the outset of your case. Some attorneys may accept 24 monthly payments in lieu of the retainer. Most will require monthly payments in addition to the initial retainer, or request additional retainers as your case progresses. Ask your attorney frank questions to have clarity about your responsibility for payment of legal fees.

3.9 I Agreed to Pay My Attorney a Substantial Retainer to Begin My Case. Will I Still Have to Make Monthly Payments?

Ask your attorney what will be expected of you regarding payments on your account while the divorce is in progress. Obtain a clear understanding of whether monthly payments on your account will be expected, whether it is likely that you will be asked to pay additional retainers, and whether the firm charges interest on past-due accounts. You may be required to keep a minimum credit balance in your account to ensure your case is adequately funded for ongoing legal work.

3.10 My Lawyer Gave Me an Estimate of the Cost of My Divorce, and It Sounds Reasonable. Do I Still Need a Written Fee Agreement?

Yes, insist upon a written fee agreement with your attorney (which most divorce attorneys provide as a standard practice). This is essential not only to define the scope of the services for which you have hired your lawyer, but also to ensure that you have clarity about matters such as your attorney’s hourly rate, whether you will be billed for certain costs such as copying, and when you can expect to receive statements on your account.

A clear fee agreement reduces the risk of misunderstandings between you and your lawyer. It supports you both in being clear about your promises to one another so that your focus can be on the legal services being provided rather than on disputes about fees and costs.

3.11 How Will I Know How the Fees and Charges Are Accumulating?

Be sure your written fee agreement with your attorney is completely clear about how you will be informed regarding the status of your account. If your attorney agrees to handle your divorce for a flat fee, your fee agreement should clearly set forth what is included in the fee.

Most attorneys charge by the hour for handling divorces. At the outset of your case, be sure your written fee agreement includes a provision for the attorney to provide you with regular statements of your account. It is reasonable to ask that these be provided monthly.

Review the statement of your account promptly upon receipt. Check to make sure there are no errors, such as duplicate billing entries. If your statement reflects work that you were unaware was performed, call for clarification. Your attorney’s office should be helpful in responding to any questions you have about services it provides.

Your statement might also include filing fees, court reporter fees for transcripts of court testimony or depositions, copy expenses, or interest charged on your account. If time has passed and you have not received a statement on your account, call your attorney’s office to request one. Legal fees can mount quickly, and it is important that you are aware of the status of your legal expenses.

3.12 What Other Expenses Are Related to the Divorce Litigation Besides Lawyer Fees?

Talk to your attorney about costs other than the attorney fees. Ask whether it is likely there will be filing fees; court reporter expenses, fees for subpoenas; or expert-witnesses, mediation, or parenting class fees. Expert-witness fees can be a substantial expense, ranging from hundreds to thousands of dollars, depending upon the type of expert and the extent to which he or she is involved in your case.

Speak frankly with your attorney about these costs so that together you can make the best decisions about how to allocate your budget for your divorce.

3.13 Who Pays for the Experts Such as Appraisers, Accountants, Psychologists, and Mediators?

Costs for the services of experts, whether appointed by the court or hired by the parties, are ordinarily paid for by the parties.26 In the case of the guardian ad litem who may be appointed to represent the best interests of your children, the amount of the fee will depend upon how much time this professional spends. The judge often orders this fee to be shared by the parties, though depending upon the circumstances, one party can be ordered to pay the entire fee. If you can demonstrate indigency, that is, a very low income and no ability to pay, the state may pay your share of the guardian ad litem fee.

Psychologists either charge by the hour or set a flat fee for certain types of evaluation. Again, the court can order one party to pay this fee, or both parties to share the expense. It is not uncommon for a psychologist to request payment in advance.

Mediators either charge a flat fee per session or an hourly rate. Generally each party will pay one half of the mediator’s fee, though the parties may agree for the entire cost to be paid by the party with the higher income.

The fees for many experts, including appraisers and accountants, will vary depending upon whether they are called upon to provide only a specific service such as an appraisal, or whether they will need to prepare for giving testimony and appear as a witness at trial. Generally each party is responsible for the cost of his or her experts, though the court has the authority to order reimbursement (usually only partial, if at all) from the other party.

3.14 What Factors Will Impact How Much My Divorce Will Cost?

Although it is difficult to predict how much your legal fees will be, the following are some of the factors that affect the cost:

whether there are children

whether child custody is agreed upon

whether there are complicated legal or factual questions

whether a pension plan will be divided between the parties

the nature of the issues contested

the financial complexity of the case

the number of issues agreed to by the parties

the level of cooperation between the parties and counsel

the frequency and effectiveness of your communications with your attorney

the willingness and ability of the parties to communicate constructively with each other

the promptness with which information is provided and exchanged between both the clients and the attorneys

whether there are litigation costs, such as fees for expert witnesses or court reporters

the hourly rate of the attorney

the time it will take to conclude your divorce

the number of court appearances required to resolve all disputes between the parties

3.15 Will My Attorney Charge for Phone Calls and E-mails?

Unless your case is being handled on a flat-fee basis (which is very rare for any divorce other than a simple, uncontested divorce), you should expect to be billed for any communication with your attorney. Many of the professional services provided by lawyers are handled by telephone and by e-mail. This time can be spent giving legal advice, negotiating, and gathering or sharing information to protect and further your interests. These calls and e-mails are all legal services for which you should anticipate being charged by your attorney.

To make the most of your time during attorney telephone calls, plan your call in advance. Organize the information you want to relay, your questions, and any concerns to be addressed. This will help you to be clear and focused during the telephone conversation to avoid wasting time.

3.16 Will I Be Charged for Talking to the Staff at My Lawyer’s Office?

It depends. Check the terms of your fee agreement with your lawyer. Whether you are charged for talking to nonlawyer members of the law office may depend upon their role in the office. If you are charged it should be at a rate significantly lower than an attorney’s rate.

Your lawyer’s support staff will be able to relay your messages and receive information from you. They may also be able to answer many of your questions. The effective use of paralegals, legal assistants, and associate attorneys is an important way to control your legal costs.

3.17 What Is a Trial Retainer and Will I Have to Pay One?

The purpose of the trial retainer is to fund the work needed to prepare for trial and for services the day or days of trial. A trial retainer is a sum of money paid in advance on your account with your lawyer when it appears as though your case may not settle and may proceed to trial.

Confirm with your attorney that any unearned portion of your trial retainer will be refunded if your case settles. Ask your lawyer whether and when a trial retainer might be required in your case so that you can plan your budget accordingly.

3.18 How Do I Know Whether I Should Settle Versus Go to Trial?

Deciding whether to take a case to trial or to settle is often a challenging point in the divorce process. This decision should be made with the support of your attorney. Though there may be some lawyers who would prefer trial to settlement, the great majority of divorce lawyers are sincerely interested in helping you reach a fair settlement.

When the issues in dispute are primarily financial, often the decision about settlement is related to the costs of going to trial. Be clear about just how far apart you and your spouse are on the financial matters and compare this to the estimated costs of going to trial. By comparing these amounts, you can decide whether a compromise on certain financial issues, and certainty about the outcome, would be better than paying legal fees and taking the risk of going to trial.

3.19 Is There Any Way I Can Reduce Some of the Expenses of Getting a Divorce?

Litigation of any kind can be expensive, and divorces are no exception. However, there are many ways that you can help control the expense, including the following:

Put it in writing. If you need to relay information that is important but not urgent, consider providing it to your attorney by mail, fax, or e-mail. This creates a prompt and accurate record for your file and takes less lawyer time than providing the information orally. Attorneys can read faster than they can listen to you and make notes.

Keep your attorney informed. Just as your attorney should keep you up to date on the status of your case, you need to do the same. Keep your lawyer advised about any major developments in your life such as plans to move, to have someone move into your home, to change your employment status, to buy or sell property, or to begin dating.

If your contact information changes during your divorce, be sure to notify your attorney.

Obtain a copy of documents. An important part of litigation includes reviewing documents such as tax returns, account statements, report cards, and medical records. Your attorney will ordinarily be able to request or subpoena these items, but many may be readily available to you directly or upon request to your spouse. The more tasks you handle yourself, the more you save.

Consult your attorney’s website. If your lawyer has a website, it may be a great source of useful information. The answers to commonly asked questions about the divorce process can often be found there, saving you the cost of speaking with the attorney.

Utilize support professionals. Get to know the support staff at your lawyer’s office. Although only attorneys are able to give you legal advice, the receptionist, paralegal, or legal assistant may be able to answer your questions regarding the status of your case. All of your communications with any employee of the law firm are required to be kept confidential.

Consider working with an associate attorney. Although the senior attorneys in a law firm may have more experience, you may find that working with an associate attorney is a good option. Hourly rates for an associate attorney are typically lower than those charged by a senior attorney. Frequently the associate attorney has trained under a senior attorney and developed the necessary skills and knowledge of the law.

Discuss with the firm the relative benefits of working with a senior versus an associate attorney in light of the nature of your case, the experience and expertise of the respective attorneys, and the potential cost savings to you.

Leave a detailed message. If your attorney knows the information you are seeking, he or she can often get the answer before returning your call. This not only gets your answer faster, but also reduces costs.

Discuss more than one matter during a call. It is not unusual for clients to have many questions during litigation. If your question is not urgent, consider waiting to call until you have more than one issue to discuss. Never hesitate to call to ask any pressing questions.

Provide timely responses to information requests. Whenever possible, provide information requested by your lawyer in a timely manner. This avoids the cost of follow-up action by your lawyer and the additional expense of extending the time in litigation.

Remain open to settlement. The best way to reduce your costs in a divorce case is to settle issues and reduce conflict. Recognize that when your disagreement concerns financial matters, the value of money in dispute may be less than the amount it will cost to go to trial. Be reasonable in seeking and agreeing to fair compromises.

3.20 I Don’t Have Any Money, and I Need a Divorce. What Are My Options?

The options for free legal services are very limited. If you have a low income and few assets, you may be eligible to obtain a divorce at no cost or minimal cost through one of the Legal Aid offices in the state. Legal Aid has a screening process for potential clients, as well as limits on the nature of the cases it takes. The demand for its services is usually greater than the number of attorneys available to handle cases.

If you have other issues to resolve as part of your divorce case, such as custody or a protective order, Legal Aid is unlikely to be able to help.

3.21 I Don’t Have Much Money, but I Need to Get a Divorce. What Should I Do?

Consider some of these options:

Borrow the legal fees from friends or family. Often those close to you are concerned about your future and may be willing to support you in your goal of having your rights protected. If the retainer is too much money to request from a single individual, consider whether a handful of persons might each be able to contribute a lesser amount to help you reach your goal of hiring a lawyer.

Charge the legal fees on a low-interest credit card or consider taking out a loan.

Start saving. If your case is not urgent, consider developing a plan for saving the money you need to proceed with a divorce. Your attorney may be willing to receive and hold monthly payments until you have paid an amount sufficient to meet the initial retainer requirement.

Talk to your attorney about using money held in a joint account with your spouse.

Find an attorney who will work with you on a monthly payment basis.

Ask your attorney about your spouse paying for your legal fees. This is usually not a good option as your spouse would rarely have to pay all of your fees, and a court hearing or trial would be necessary to get a court ruling on the issue of attorney’s fees if your spouse does not agree.

Ask your attorney about being paid from the proceeds of the property settlement. If you and your spouse have acquired substantial assets during the marriage, you may be able to find an attorney who will wait to be paid until the assets are divided at the conclusion of the divorce.

Even if you do not have the financial resources to proceed with your divorce at this time, consult with an attorney to learn your rights and to develop an action plan for steps you can take between now and the time you are able to proceed. Often there are measures you can take right away to protect yourself until you have the money to proceed with your divorce.

3.22 Is There Anything I Can Do on My Own to Get Support for My Children if I Don’t Have Money for a Lawyer?

Yes, if you need support for your children, contact the Virginia Division of Child Support Enforcement (DCSE) for help in obtaining a child-support order. Although they cannot help you with matters such as custody or property division, they can pursue support from the other parent for your children, at no charge to you.

Call the Virginia Division of Child Support Enforcement Call Center at (800) 468-8894 (Monday through Friday, 7 A.M.–6 P.M., toll-free) or visit their website at: www.dss.virginia.gov/ family/dcse/index.cgi.

3.23 If My Mother Pays My Legal Fees, Will My Lawyer Give Her Private Information About My Divorce?

If someone else is paying your legal feels, discuss with your lawyer, and the person paying, your expectations that your lawyer will honor the ethical duty of confidentiality. Without your permission, your attorney should not disclose information to others about your case. In most cases, the person paying the attorney will want to review the attorney’s monthly statements which will contain an itemized and detailed description of the work provided by the law firm on your behalf.

If you authorize your attorney to speak with your family members, be aware that you will be charged for those communications. Regardless of the opinions of the person who pays your attorney fees, your lawyer’s ethical duty is to remain your advocate.

3.24 Can I Ask the Judge to Order My Spouse to Pay My Attorney Fees?

Yes. If you want to ask the judge to order your spouse to pay any portion of your legal fees, be sure to discuss this with your attorney and he or she will explain your chances of success. Realize that you remain liable for your attorney’s fees, even if there is a chance that you will receive a partial reimbursement from your spouse.

If your case is likely to require costly experts and your spouse has a much greater ability to pay these expenses than you, talk to your lawyer about the possibility of filing a motion with the court asking your spouse to pay all or part of these costs while the case is pending.

3.25 What Happens if I Don’t Pay My Attorney the Fees I Promised to Pay?

Your attorney may seek to withdraw from representation if you do not comply with the fee agreement. Your attorney may also file an attorney’s lien against any judgment awarded to you to pay any outstanding attorney’s fees or costs to the firm. Consequently, it is important that you keep the promises you have made regarding your account.

If you are having difficulty paying your attorney’s fees, talk with your attorney about payment options. Consider borrowing the funds, using your credit card, or asking for help from friends and family.

Above all, do not avoid communication with your attorney if you are unable to stay current with your payments. Staying in touch with your attorney is essential for you to have an advocate throughout your divorce.