When Can I Get My Ex To Pay My Attorney Fees?

On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Wednesday, June 19, 2013

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 of 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 the lack of income resulted from the marriage arrangement, and to not assist that spouse in paying attorney’s fees would work as a penalty to 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 has to bear a larger part of 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 in an attempt to gain 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 has to 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 also is considered an expert on attorney’s fees, both in terms of need and amount. A party concerned about bearing the cost of the other party’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.

If you have questions about attorney fee awards, contact us – we can help