Divorce can be a very draining and difficult process, both emotionally and financially. Fortunately, for dependent spouses there may be opportunity to recover for attorney’s fees in a divorce proceeding.

Are Attorney’s Fees Automatically Awarded upon Final Judgment?

In general, a final judgment in a divorce does not necessarily mean that a dependent spouse will be awarded attorney’s fees. Typically, the ability to recover attorney’s fees is left to the discretion of the court in which the divorce was made final. In some states, statutes may award attorney’s fees whether or not judgment was entered on behalf of the spouse or not.

What If I Can’t Afford an Attorney’s Services?

There may be instances where you may be unable to await final judgment because you cannot afford an attorney during the divorce proceedings. Know, that in these cirumstances, the law likes to enable each party to have access to legal representation in order preserve all of his/her rights. Thus, the court may award money necessary for one spouse to maintain a divorce proceeding, including attorney’s fees.

The power of a court to award money may be dependent upon statute or may rest with the court regardless of statutory allowances. Again, however, the ability to receive money to file for divorce and pay for an attorney will be left to the discretion of the court in which the divorce was brought unless otherwise specified in a statute.

What Factors Does a Court Use?

Unlike other civil cases where attorney’s fees may be awarded to the prevailing party, in divorce proceedings the attorney’s fees are usually awarded to the party in greater economic need. In determining whether money should be provided, courts have applied these factors:

  • whether the spouse is financially unable to pay the fees necessarily to be incurred
  • whether the independent spouse has the financial means and ability to pay
  • whether the action would be bitterly contested and would thereby likely create a great deal of preparation

Should I Seek an Attorney?

If you can afford an attorney and need to file for divorce, it is unlikely the court will make the other spouse pay for your attorney fees. However, if you need to file for divorce but can’t afford an attorney, you may be able to hire the attorney you want and have the other spouse pay for him/her. Talk to a good divorce lawyer about your options.