U.S. courts generally do not order the loser of a lawsuit to pay the winner’s attorney’s fees. This is the case because courts do not want to discourage people from taking legal action when necessary. Courts want to protect low-income litigants by letting them bring their case to court without forfeiting everything if they lose.
Certain states allows judges great discretion in ordering someone to pay reasonable attorney fees in family law and divorce cases. Family law is referred to as "equitable," since it allows the judge to make the fairest determination by taking into account a number of different 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 for the other’s spouse’s legal retainer (up-front fee to retain a lawyer) at the beginning of the case. A judge can also order a spouse to pay for the expenses of hiring expert witnesses and other litigation support personnel.
The court must first considers whether attorney fees should be awarded at all. The judge considers the conduct of the parties, both in and out of court. The court looks to whether the conduct of a spouse was diligent and reasonable, or whether it was reckless, in bad faith, or illegal. A spouse should be careful to observe all court rules and pursue settlement as vigorously as possible. A spouse whose conduct is inappropriate at any time may be penalized by the court and be forced to pay for the other spouse’s legal fees.
Once the court decides awarding attorney fees is appropriate according to state statute, it does not simply award the attorney whatever fee the attorney requested. 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, or else risk being forced to pay for your spouse’s attorney’s fees.
If you are going through a divorce, it is important that you contact an attorney. A divorce attorney will be able to inform you of your options, help you follow all the necessary rules and procedures, and negotiate on your behalf.