Awarding Attorney Fees in Divorce Cases

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First and foremost, spouses in divorce cases are primarily responsible for paying their own attorney’s fees by entering into an attorney-client contract.  Furthermore, U.S. courts generally do not order the loser to pay the winner’s attorney fees, as opposed to British law where the loser pays.  This rule favors low-income litigants who want to bring their case to court without forfeiting everything if they lose. 

However, a big exception to this rule exists in family law and divorce cases, where state statutes usually grant the judge great discretion in ordering reasonable attorneys’ fees.  Family law is referred to as “equitable,” since it allows the judge to make the fairest determination by taking into account a number of balancing factors.  For example, attorney fees are commonly awarded when one spouse has much more money than the other. 

The judge can even order one spouse to pay a legal retainer (up-front fee to retain a lawyer) at the beginning of the case.  A judge can order expenses to hire expert witnesses and other litigation support personnel. 

The court first considers whether fees should be awarded at all.  The judge considers the conduct of the parties, both in and out of court: whether conduct was diligent and reasonable, or whether it was reckless, in bad faith, or illegal.  A spouse should be careful in observing all court procedures, and pursue settlement as vigorously as possible.  A spouse whose conduct is inappropriate at any time may get nailed by the other side’s legal fees. 

Once the court decides an award of attorneys’ fees is appropriate according to state statute, it does not just allow the attorney to get any fee she requests.  Generally, it reduces the amount requested to a “reasonable” amount, taking into consideration the difficulty of the subject matter and how much time and energy the attorney put into the case.  The lesson for divorcing spouses is clear: be diligent and honest, be prepared for court, and try to settle in good faith.

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Last Modified: 01-14-2014 02:11 PM PST

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