Perhaps you have been the stay-at-home parent in a long marriage. Instead of working and building a career, you became the caregiver, leaving your income completely at the mercy of your spouse. It comes time to get a divorce, but you worry if you will be able to afford your divorce attorney. Do you have any relief?
A court by statute may order one spouse to be responsible for some or all the attorney fees incurred by the other spouse. The fees must be “reasonable,” and the court must consider the ability of each party to pay attorney’s fees and the conduct of the parties during the marriage and during the litigation.
In our example above, the stay-at-home parent would likely qualify for an award of attorney’s fees because of the lack of income resulting from the marriage arrangement, and not assisting that spouse in paying attorney’s fees would work as a penalty for getting a divorce in a no-fault era. Whenever the disparity in incomes between spouses is severe, the court will be more likely to order the higher-earning spouse to contribute to paying the attorney’s fees of the other spouse.
What happens when the incomes of the parties are somewhat closer? In general, the law assumes each party should be responsible for his or her own attorney’s fees, so if both parties have relatively equal incomes, the court will have less of a basis to order attorney’s fees. Certain situations may encourage a court to deviate from this rule. For example, if one party must bear a larger part of the marital debt or most of that party’s assets are not liquid, some award of an attorney’s fee might be warranted. Another situation involves attorney’s fees while the case is pending – a party may be so encumbered by other financial responsibilities that, to maintain the status quo, the court will order the other spouse to pay some of the attorney’s fees. Notably, the court could offset the fees the spouse had to pay in the final distribution of property.
Attorney fees may also be warranted in terms of conduct, either during the marriage or during the litigation. For example, if the evidence shows that the reason one party sought a divorce concerned numerous instances of domestic abuse, the court could consider that fact in ordering the abusing spouse to pay the attorney’s fees of the other spouse. Also, if one party manufactured allegations to gain an advantage in the litigation but only caused the litigation to extend without changing the outcome, that type of misconduct could justify the court in ordering that party pay the attorney’s fees of the other party.
Attorney fees may even be awarded on appeal. Suppose in our original example the stay-at-home parent received a substantial award of assets that the working spouse found inequitable, and the working spouse chose to appeal. Even though that party is appealing, the stay-at-home parent still must incur fees to defend the case on appeal, and the court could find that the working parent, who is appealing, could be responsible for some or all of the other party’s attorney’s fees. However, if it seems that the appeal has merit, the fee award may be limited by that fact.
All awards for attorney fees are final judgments and appealable. If a party believes an award of fees too high or the lack of an award of fees unjust, the party may appeal.
We should mention that attorney fee awards are highly discretionary, and the case law gives no bright line rule as to when an award would be too little, too much or simply unjust. Though it may seem the award of attorney’s fees may be random, the law gives the trial court great leeway and is considered an expert on attorney’s fees, both in terms of need and amount. A spouse concerned about bearing the cost of the other spouse’s fees should fight very hard at the trial court to establish that the fees are not supported by the evidence and would be unreasonable or unjust.
The award of attorney fees doesn’t help you hire an attorney as the award will either come during the case after a hearing or at the end of the case after a trial. So, how should a spouse seeking a divorce approach the cost of hiring an attorney for the divorce when the necessary cash isn’t available?
In general, a spouse seeking divorce in this circumstance has two options: pay with existing assets or take out some form of a credit-based loan.
Why not try and pay by leveraging an existing marital asset? While it may seem appealing and an easy option, it is not really available. If a spouse uses marital assets to pay for legal fees, the spouse is depleting the marital estate to meet that goal. But a spouse is not supposed to deplete any marital assets during the divorce or take marital assets without the consent of the other spouse before or during a divorce. So, if a spouse takes out $25,000 to pay for an attorney before filing for divorce, that spouse will have to pay back half that sum to the other spouse in any settlement of the divorce, and the half spent by the spouse will count against that spouse’s share of the marital estate. As you can see, that is not a good strategy as you will end up with less net equity.
Which leaves us with the issue of a loan. One way to borrow would be to max out a credit card. The problem? Credit cards have high-interest rates. A better option? A personal loan. A variety of companies and banks provide low-interest personal loans for precisely these types of situations. You can borrow large sums without collateral and have a fixed and reasonable repayment schedule you can set at the time of the loan. You can choose a different period to repay the loan, subject possibly to different interest rates.
Personal loans, while perhaps the best option, still has the negatives of interest and having to qualify for the loan (a problem if you have a troublesome credit score), and you get one shot at borrowing the right amount, so if you guess low you may have to get a second loan, and if you guess high, you are paying interest on money you didn’t use.
If you cannot borrow from family or use separate property, the personal loan may be your only option that makes financial sense.
Should you need the assistance of an experienced divorce attorney, or have questions about your situation, know that we are here to help and ready to discuss those questions with you.