Typically, each spouse is responsible for paying their own legal fees in divorce; however, when cases become particularly complex or one party has significantly more control of assets or income, the court may order one spouse to contribute towards covering the other party’s attorney fees.
Family Code section 2030 gives judges broad discretion in awarding attorney fees. A few key considerations that could sway their decision include:
The Court
Divorces can be costly affairs; many couples agree to split the costs of attorney fees between themselves. However, judges ultimately make this determination and may consider various factors when making their ruling.
Judges typically encourage parties to settle their divorce cases because this helps reduce court’s caseload and save everyone both time and money. Thus, when determining who should pay attorneys’ fees, courts typically favor spouses who demonstrate willingness to settle their cases; conversely if one party takes unnecessary issues to trial or engages in misconduct (e.g. hiding assets) during divorce proceedings, judges may order that person to cover both sides’ attorneys fees.
Judges often award attorneys’ fees to spouses that qualify for post-separation support, such as stay-at-home parents who forgo career advancement and earnings potential to care for their children from a previous marriage. A dependent spouse should petition the court early in the divorce proceeding for this award.
Alternative Dispute Resolution (ADR)
As part of their financial preparations for divorce proceedings, spouses frequently create their own agreement regarding how legal expenses will be covered. Once approved by a judge, such an arrangement becomes legally enforceable as a divorce settlement agreement.
Courts may rule in certain situations that one party should cover the attorney fees for another; typically this occurs if one spouse lacks financial resources to afford his/her own attorney and cannot afford hiring one on his/her own. A dependent spouse in such an instance can petition the court for an award of attorneys’ fees from their more financially secure partner.
Alternative Dispute Resolution (ADR) is an alternative form of dispute settlement which utilizes neutral third parties to settle disagreements without resorting to litigation. ADR methods may include mediation, arbitration, factfinding and mini trials as ways of settling claims outside traditional court proceedings and can often be more efficient and less expensive compared to court procedures – while being tailored specifically to your case needs.
Spouses’ Conduct
Courts take various factors into account when determining who should pay legal fees in divorce cases, including one spouse’s financial need and ability to cover legal fees – similar to how they determine alimony payments.
Courts encourage parties to settle their divorce cases amicably as this reduces the number of pending cases and saves both time and money for everyone. A judge often favors spouses that are willing to compromise and negotiate in good faith when making their decisions on attorney fees, while they require anyone who forcefully takes their case all the way through trial and/or engages in misconduct (such as hiding assets) to pay all costs related to that party’s attorneys fees.
Courts may order spouses who seek to avoid fees to provide evidence that they have access to sufficient funds for legal representation – this could include cash savings accounts, liquid assets or community property as sources.
Financial Disparity
Divorce can be an expensive battle, so the law strives to protect wealthier spouses from dominating proceedings financially. Under Domestic Relations Law SS 237, there is an implied presumption that “monied spouse” will cover part of another party’s legal fees during proceedings.
However, this is not an absolute rule and judges may consider various other factors when determining who pays attorney fees in divorce cases. For instance, in high-asset cases they might allow lower-earning spouses to get an advance on equitable distribution payment in order to cover legal fees associated with hiring Rochester NY divorce lawyers.
This allows a less-monied spouse to obtain legal representation without worrying about how to pay their bill from the outset of a case, or apply multiple times throughout, even as negotiations for final divorce settlement take place. It helps level the playing field between financially stable couples as both can access justice regardless of their financial standing; and can motivate both to reach agreement on an amicable solution together.