Who Pays Attorney Fees in Divorce?

Every party in a lawsuit is responsible for their respective attorney expenses. However, you can secure an award of attorney fees if you are a dependent spouse and are concerned about how to get attorney fees paid in divorce. The award is a court order requiring one party to pay the attorney’s expenses the another. 

What to Know About Attorney Fees in a Divorce

If you are the one who is the first to file for a divorce, then you may need to pay the initial attorney fees and court filing costs. Once in court, you can petition the court for an award of attorney fees through your attorney. Depending on the nature of your case, the court may award one of the following types of fees: 

“Need-based” fees

Need-based attorney fees are awarded if the court determines that one spouse is financially dependent on the other. To establish a dependency, the court will consider if the spouse seeking an award of attorney fees is: 

  • A stay-at-home parent with little to no income;
  • Eligible for alimony or any other post-separation support; and
  • Without access to finances once held in shared accounts because of the other spouse’s actions. 

The court will seek to level the playing field to ensure that both parties have a fair chance of asserting their rights in the divorce proceedings. To this end, the court awards attorney fees, legal expenses, and any other disbursements necessary for the dependent party to participate in the proceedings.

“Conduct-based” fees

Conduct-based attorney fees are awarded against the party who deliberately complicates and drags out the divorce process to make it expensive for the other party. Grounds for conduct-based costs award include: 

  • The party fails to appear in court or any action done consistently to show a failure to cooperate in the process. 
  • Pursuits of frivolous, vexatious, unreasonable, or meritless claims and litigation that makes the other party incur attorney’s fees to defend the claims. 

Factors That May Affect Who Pays for Attorney Fees in Divorce

As stated earlier, the general rule is that each party pays for its attorney fees. However, there are exceptions to this rule. Courts determine who pays lawyer fees in a divorce by considering:

Income and asset disparity between the spouses

Courts examine the financial status of both parties to determine if there is a substantial income disparity between the two spouses and if one spouse is dependent on the other. To ascertain that a spouse is dependent, the court looks at their disposable income, which is the total income minus necessary living expenses and property owned separately. If the balance is insufficient to support a reasonable standard of living, then the court awards needs-based attorney fees and alimony in favor of the dependent spouse. 

Сomplexity of the case and results achieved

In such circumstances, the court considers the issues of contention and who is the prevailing party. The prevailing party is the one who wins on the points that made the subject of post-divorce litigation, such as modification of custody, child, and spousal support orders.

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The party that loses on such matters may be required to pay the prevailing party’s attorney fees irrespective of their financial capacity. However, in such a case, the court may limit the award of attorney fees to accord with the results achieved, giving regard to: 

  • Experience, skills, and level of effort of the attorney; and 
  • If the attorney worked efficiently towards resolving the matter

When Is the Decision Made Regarding Who Pays Attorney Fees in Divorce Court?

As soon as the divorce proceedings start, the court will consider the petition, giving an award of attorney fees so that each spouse can have access to quality legal representation for the remainder of the case. 

What If You Can’t Pay Due To Financial Hardship

You may apply for an award of attorney fees and fail, finding yourself in a situation where you need to pay an attorney, but you have no finances. So what can you do? You could: 

  1. Opt for limited scope representation, where your attorney handles certain aspects of your case while you manage others.
  2. Get free legal advice from a family law clinic administered by a local university.
  3. Look out for legal aid organizations for quality free services. 
  4. Discuss with your attorney strategies for reducing the costs.
  5. Ask your attorney to give you a payment plan.

How Are Attorney Fees Calculated?

The cost of divorce includes professional attorney costs and the other direct expenses of the case as follows:

  • Attorney fees – An attorney will ask for a $3,000 to $5,000 retainer from which they will deduct the hourly rate of handling your case. The hourly rate will depend on the level of experience of your attorney and usually ranges from $100 – $400 per hour. The retainer only covers the professional fees, such as the attorney’s time spent in research, case preparation, and litigation. 
  • Nature of assets –  Both parties must divide their assets such as stocks, mortgages, loans, investments, earnings, or profits acquired during the marriage fairly and equitably. Assets complicate the divorce because the attorney must determine the contribution of each party to the value of the assets. If you are in a situation where your wealth is in danger of wastage or misuse by the other spouse, then your attorney must include such realities into the legal strategy.
  • Filing fees – Filing fees are different in all states but cost a minimum of $100 in a state like Wyoming and a maximum of $400 in a state like Alabama. 
  • Child custody evaluation – If a couple cannot agree on a parenting plan, the court will recommend a child custody evaluation. These are reports put together by an evaluator recommending to the court why one parent should have custody of a minor over the other. A court-appointed evaluator will charge between $1,000 to $2,500. 
  • Forensic accounts – If you think that your spouse is hiding assets or income, your attorney is likely to advise that you hire a forensic accountant to investigate. The hourly rate will be between $300 to $500, and the amount of time they spend on your case will be dependent on its complexity. For divorce cases, it costs between $3,000 to $6,000.

You and your spouse may opt to avoid the emotionally and financially draining courtroom experience and agree on the details of your divorce, such as custody and distributions of property. In such a case, you can opt to work with a lawyer to help draft a legally binding settlement agreement. Such an arrangement will fall under the limited scope representation and may cost less than litigation. 

Avoiding Paying for a Spouse’s Attorney Fees

If there is a significant disparity of income between you and your spouse, you may not be able to avoid paying for their attorney fees. However, the court does not take the applications for one spouse to pay the other attorney fees lightly. 

However, if neither of you is dependent on the other, and you do not want to be the one who is responsible for attorney fees in a divorce, then your behavior matters. Try not to act in a manner that frustrates potential settlement or any other bad faith actions, such as failing to comply with court orders, avoiding necessary court appearances, or discovery requests. 

Summing up

The cost of a divorce depends on each party’s level of transparency, the nature of assets, and whether the court needs to rule on custody arrangements. The degree of complexity of your circumstances will impact costs. If your case is very complex,  your attorney will spend an extended amount of time on your case or will need to hire an expert. 

Unless you or your spouse is dependent, each person pays for their attorney fees. Yet, you may be the one who pays legal fees in a divorce for yourself and your spouse if the court finds that you deliberately frustrate the divorce process.

Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

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