Who Has to Pay Attorney Fees in a Divorce?

Who Has to Pay Attorney Fees in a Divorce?

Divorce cases are expensive; no doubt about it.  Johnny Carson is often credited with making the joke that they are so expensive because they are worth it.  Nevertheless, cost is a question that almost always comes up in a new divorce case.  Along with that is whether the other party can be forced to pay one’s attorney fees.

The concept of the opposing party having to pay the other side’s attorney fees is more prevalent in other areas of civil practice.  It also often comes out of the notion that the “loser pays.”  That actually is how the system tends to work in many European countries, but is not a doctrine that has been adopted in the United States save for certain very limited types of cases.  The reason being that it would tend to discourage people from bringing valid legal claims to court.

Moreover, the idea that there is a “winner” and a “loser” in a divorce case is a misconception.  There really are no winners.  The court is trying to make an equitable decision and solve difficult problems in the most just way possible or in the best interest of the child.

With all that being said, it would be wrong to get the idea that attorney fees are never awarded in a divorce case.  They are.  Kentucky Statute allows for attorney fees and costs of an action to be awarded “from time to time.”  However, going into a case, you would be wise to make sure that you have funds available with which to support your litigation.  Otherwise, you may be forced to sell your case short and accept a settlement that is far less than it should be simply because you cannot pay for certain expert witnesses, your attorney, or otherwise support yourself.  The reason I say this is because, even though the statute allows the court to order the other party to advance attorney fees and costs to the more indigent spouse, many judges refuse to do so and, instead, wait until the end of the litigation to order attorney fees.  That does not mean that a motion for advancement of fees should not be made especially in situations of wide income disparity.  Just be forewarned that it might not pan out.

When courts do award attorney fees whether during the pendency of the action or at the end, the case usually falls into three categories:

  • As alluded to earlier, where there is a wide income disparity between the parties, the court is more likely to look favorably upon a request for an award of attorney fees.  Sometimes, this is referred to as “leveling the playing field.”  For example, where you have a wealthy physician on one side and a stay-at-home mother with limited income potential or earning capacity on the other, it is more likely that the court will award the wife her attorney fees and costs.  Keep in mind the court will temper this decision based on how the property is ultimately awarded and what, if any, maintenance is awarded.
  • To reimburse one party for fees incurred to litigate a case that should never have been tried in the first place.  This would be a situation where the law is fairly clear and the case should have been settled outside of court, but one party is simply too stubborn or unreasonable.  If you hire a skilled family law attorney, he/she is better able to prevent you from finding yourself in this situation.
  • The final reason would be to discourage misconduct by the parties during litigation.  Many times during a case one party is particularly unwilling to cooperate or obey court orders.  This results in the other party having to come before the judge to seek sanctions to force the recalcitrant party to do what he/she was supposed to do in the first place.  As a sanction the court might force the misbehaving party to pay attorney fees to the other side.

Once the court decides to award attorney fees, the judge has to then decide how much to award.  The court may require the attorney seeking the award to submit an affidavit setting out his/her fees and how the figure was reached.  The court will then evaluate the fee charged/requested in light of the complexity of the case, the reasonableness of the charges, and any other relevant equities of the case. Once awarded, the attorney fees are enforceable as any other money judgment and may be garnished from the obligee’s wages and assets.

Photo courtesy of Tax Credits

Leave a Reply

Your email address will not be published. Required fields are marked *