Tag: attorney fees

The High Cost of Not Hiring a Lawyer

The High Cost of Not Hiring a Lawyer

I am often asked, “Do I really need to hire a lawyer for my divorce.”  That answer is no, there is no law that requires you to hire a lawyer to represent yourself.  There is also nothing that says you could not perform your own amputation if you need to, but things usually work out better if you hire a surgeon to do it.

Representing yourself in court is called being pro se (you have now fulfilled your quota of pompous legal terms for the day).  The problem with trying to represent yourself in a divorce is that things rarely work out as well as you had hoped they would.  Many people start off with the best of intentions that their divorce will be “uncontested” only to find that they cannot agree on some very important issues.  This is only the beginning of the problems with self representation.

Another major concern is that you may not get everything to which you are entitled.  Many people I talk to on a daily basis are surprised by what the law entitles them to in a divorce.  If you do not know  to what you are entitled, you have no idea what to ask for and can wind up “leaving money on the table.”  This can make the prospect of starting over in a new life as a single person much more challenging if you have even fewer resources.  Your lack of knowledge and hopes of saving yourself a few thousand dollars on an attorney could wind up costing you tens of thousands of dollars.

That same lack of knowledge of the law can also be a detriment to you if you have to go to court.  Courtrooms are operated using a complicated set of rules and procedures that attorneys often spend years learning and studying.  If you are representing yourself, you are held to the same standard as an attorney and you must know all of these rules inside and out.  Additionally, you are responsible for knowing and understanding all of the substantive law that applies to your case and whether an argument or motion you file is considered frivolous or without foundation.  If your lack of knowledge or procedure results in unnecessary litigation or your pleadings are deemed baseless or harassing you could wind up owing the opposing party’s attorney fees.  At a minimum, a skilled attorney on the opposing side will most likely be able to prevent you from presenting all of the evidence you want the judge to review and otherwise put you at a tremendous disadvantage.

The final concern is that you will let your emotions take over.  An attorney’s job is to look at your case, the facts and the law objectively and advise you as to the best course of action.  When you are representing yourself, there is a real fear that emotions such as anger, hurt, the desire for revenge will take over and cloud your judgment.  This can cause you to make some very, very stupid mistakes causing you to act like a hurt and angry spouse instead of a rational attorney.  Settlement negotiations wind up going nowhere, which results in you having to go before the judge, where you again let your emotions get out of control and you wind up with an even worse result.

There is a reason that the old adage “he who acts as his own attorney has a fool for a client” is an old adage.  It is just as correct today as when it was first uttered probably hundreds of years ago.  Do yourself a favor and hire a lawyer.

Photo courtesy of Pat Loika (cropped for space)

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