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Divorce | Family

Who Pays Attorney Fees in Divorce?

8 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

In most cases, each party pays their own legal fees. However, there may be exceptions based on the specifics of your case and applicable state law. 

A judge may order one party to pay all or part of the other spouse’s legal fees. This typically happens if the other spouse has significantly more resources or acts in bad faith during the divorce process.

In some divorce cases, spouses can agree to divide their lawyer fees. This agreement should be included in any final divorce settlement.

Can You Make a Spouse Pay Your Legal Expenses?

If you’re unable to pay your attorney’s fees, you may be able to petition the court for help. You’ll need to provide evidence that you need the means to pay or that paying would be an undue financial burden.

The court doesn’t require one party to pay all the other party’s legal expenses simply because they can. A judge must determine that it is necessary and appropriate to be approved for attorney’s fees. This means they will consider the cost of each party engaging a lawyer to represent them in court and any other expenses associated with the divorce case.

Consider filing a motion for interim attorney fees with the court if you:

  • Are a victim of domestic violence
  • Are a dependent spouse, stay-at-home parent, unemployed, no/low income, or little to no assets
  • Receive public assistance, such as SSI/SSD, Food Stamps, Medicaid
  • Have a disability that prevents you from working
  • Have been wrongfully accused or convicted of a crime
  • Have special economic needs, such as medical bills or education costs
  • Have already paid considerable attorney’s fees and need assistance with the rest

At the hearing, you will be required to provide evidence and testimony supporting your motion for attorney’s fees. The judge will then decide if it is appropriate and necessary for you to receive help paying for your legal costs.

If the court grants attorney’s fees to one spouse, the award will be limited and typically won’t cover all of the costs. The amount awarded will consider the resources available to each party and their respective contributions to the divorce process.

What If Fee Award is Denied?

If the court denies your motion for attorney’s fees, seek lower-cost legal help or find pro bono lawyers to assist you. You can also use Unbundled Legal Help, which allows you to find a lawyer only for specific tasks related to your case.

You may find assistance from state and local organizations, such as domestic violence shelters, legal aid clinics, or bar associations. These organizations may provide free legal services to those who qualify.

Alternatively, you can opt for an alternative dispute resolution approach, such as mediation or arbitration. This requires both parties to submit their disputes to a neutral third party to resolve the issues without going to court. The process is often faster and less expensive than a traditional court hearing.

Fee Award Considerations

Fee awards may be used to reimburse a spouse for their attorney fees related to the divorce. The court may also award fees to one spouse in order to “level the playing field” and prevent them from being taken advantage of by the other.

Whether you are requesting an award of attorney fees in your divorce or defending against one, here are common factors that the court will consider before deciding how much each party should pay.  

Ability to Pay

The primary consideration when awarding fees is the financial status of each party to pay their own attorney fees. A judge will determine each party’s ability to pay by looking at their respective incomes, assets, and debts.

In these cases, the court will also consider any other financial obligations each party may have. This includes child support payments, alimony, and other expenses that could impact their ability to pay attorney fees.

The Reasonableness of Fees

This means looking at how much an attorney charges for their services and evaluating if it is fair and reasonable given the circumstances of the case. The court may also consider whether or not the attorney did any work that was unnecessary or not related to the case.

Attorney fees should be reasonably compared to the amount in dispute and other similar cases. If a fee is deemed too high, the judge will reduce or deny it entirely.

The Necessity of Representation

If no complex issues require legal expertise, the court may determine that one party didn’t need an attorney. A prenuptial or marital settlement agreement could be sufficient to settle the divorce without legal counsel.

The court may also decide that one spouse didn’t need an attorney if the other could adequately represent their own interests. Simple divorce cases, such as those without children or complex financial arrangements, may be suitable for self-representation.

The Conduct of Each Party

Any action or behavior that attempts to delay or prolong the divorce proceedings may be considered bad faith conduct. Refusing to negotiate in good faith, making false or exaggerated claims, or failing to disclose relevant information can count against a party with respect to attorney’s fees.

The court also looks at any attempts to manipulate the litigation system or influence the outcome of the divorce. This includes filing unnecessary motions, making false allegations, or other forms of harassment.

The Merits of Each Party’s Position

If one spouse has a clearly stronger case than the other, the court may require the less successful party to pay all or part of the other spouse’s attorney fees. This is also called a “fee shift” intended to prevent one party from obtaining an unfair advantage in the divorce.

When making this determination, the court may consider each party’s legal arguments strength, willingness to settle, and whether or not they made any reasonable offers.

How Attorney’s Fees Are Calculated

Once the court has determined that a fee award is appropriate, it will determine the legal fees each party should pay. Every case is different, so there is no set formula for calculating attorney fees.

However, the court will generally look at the following factors when determining how much each party should pay:

  • The complexity of the case, including the number of court appearances required
  • The amount of time spent by each attorney on the case
  • The reasonable rate for legal services based on factors such as geographical location and experience level
  • Any particular circumstances that could affect the divorce fees

You may be required to submit detailed documentation showing the hours spent and the tasks performed by your lawyer.

The court may also consider any costs associated with expert witnesses, court filing fees, or other expenses related to your case. Once determined, the judge will issue a written ruling outlining how much the other spouse must pay for legal fees.

When are Legal Fees Paid?

After the court makes a decision to award attorney’s fees, one party will be responsible for paying the other’s legal costs. The court may order payments directly from one spouse to the other or take them from joint assets as part of the divorce settlement.

In some cases, a judge may decide that the legal fees should be paid in installments over a period of time. This allows both spouses to care for their immediate financial needs while still meeting their obligation to pay the attorney’s fees.

If one spouse fails to make payments as ordered, the court may take further action. This could include suspending the other spouse’s visitation rights, garnishing wages, or other punitive measures to ensure all agreed-upon payments are made.

What If You Can’t Afford to Pay Your Spouse’s Attorney Fees?

If the court orders you to pay your spouse’s fees but cannot make the payments, options are available. You can try to negotiate with your spouse or their attorney to reach an agreement that is more affordable for you.

You can also petition the court for a modification of your obligation. The court may be willing to reduce or stagger the payments to make them more manageable. You will need to explain your financial position and why you are unable to meet your obligation.

The court may waive the obligation if you can’t pay spouse attorneys fees due to extenuating circumstances, such as a job loss or medical emergency. However, this is at the court’s discretion, and you must provide evidence to support your request.

Get Help With Unbundled Lawyers

Fees in a divorce can be a source of contention and have long-term financial implications. If you are facing disputes or need help negotiating your spouse’s legal fees, consult a family lawyer who can guide you through the process.

With Unbundled Legal Help, you can hire an attorney to handle specific parts of your case while you manage the rest. You may need full representation if your case is complex, but if it is more straightforward, you may receive limited legal advice and still avoid the full cost of an attorney.

We have access to a network of Unbundled Attorneys who can provide pay-as-you-go that start as low as $500-$1500. Contact an Unbundled Divorce Lawyer in your area today, and learn if your case is a good fit.

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