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Who Pays Attorney Fees In A Divorce?

The Marble Team

Who Pays Attorney Fees In A Divorce?

Family Law
| 5 min
8

In a marriage, you share everything together. When getting divorced, now you suddenly find yourself on two opposite sides and paying the costs independently. It can be one of the most stressful periods of one’s life and the legal process alone can be damaging - especially financially. Being equipped with the right information will help you navigate the legal process of divorce more easily, so you can navigate this unchartered territory with fewer stresses. 

How expensive is a divorce in the US?

The average cost of a standard divorce costs anywhere from $5000 to a more likely average of $15,000 per person, which includes attorney fees, court fees, dispersion of property, real estate appraisers, and other expenses that arise when children come into the equation. Costs can be higher in many cases that involve children, abuse or other high-profile cases, or the separation of large quantities of difficult to liquify property, such as a business. Being equipped with the right information will help you navigate better in the legal process of divorce, especially as you enter the unchartered territory in your life. 

Who pays the attorney fees in a divorce?

More often than not, each spouse will pay for their own divorce attorney. Federal and state law requires each party to have their own attorney, not sharing the same one, and will often need to prove that they have received individual legal advice without being compelled by the other lawyer. 

Unlike in some other countries where the “losing” party is often required to pay the other’s legal fees, which is often the case in civil law cases, in American law, this is not the case. Each spouse is responsible for their own fees in accordance with the plan set out and signed with their individual lawyer. So, one spouse could be paying less or more than the other depending on who they hire and how much they charge. 

Can one spouse make the other pay their legal fees in a divorce?

Traditionally, each spouse will pay their own legal fees when going through the divorce process, however, if in some situations one spouse is in control of almost all of the assets (including bank accounts) from the marriage, then the disadvantaged spouse can apply for a “Barrow” Order which will force the spouse with more access to money to pay the legal fees of the other due to the disadvantage. 

In many “friendly” divorces, the disadvantaged spouse won’t be required to apply for the Order as the other spouse will oftentimes offer to pay both fees in order to end on good terms and fulfill the divorce as quickly as possible. Don’t expect the other spouse to pay, however, even when they say they will. Be sure to have both lawyers agree in writing or you may end up still  paying in the end. 

How does who pays the lawyer fees in California differ from those in New York?

In the State of California, most dissolutions of marriage have each spouse seek and pat for their own legal representation. Often, at the end of a case one spouse, usually the one who will take primary care of any children or is at a lower financial disadvantage/income, can ask the judge to order the other spouse to pay their legal fees. Usually, the judge would decide based on income whether a spouse should pay, however, in Alan T.S. v. Superior Court (Mary T.), the responding spouse/husband argued that although his income was slightly higher than the other, his requirement to pay both spousal and child support after the divorce left him without the available funds to pay the other spouse’s legal fees - which was approved. 

The legal process is similar within the State of New York. If one spouse is more “monied” than the other, the legal courts will attempt to make the case more equal by ordering the monied spouse to pay the other’s legal fees. This was codified in New York Domestic Relations Law § 237. These practices were put into code to attempt to erase any unequal separations due to lack of funds on one spouse’s side. There is an unfair advantage if one spouse is able to afford a higher-priced lawyer or use their financial abilities to be awarded more in the divorce than the other spouse. This levels the playing field. 

In what other situations is a spouse likely to be ordered to pay the other’s lawyer fees in a divorce? 

In most states, the court system holds similar views and have their own laws and legal practices for ensuring each divorce or dissolution case is done with as much objectivity and equality as possible. There are a few scenarios where most judges will be swayed to order or not order a spouse to pay the other’s legal fees. 

  • Both spouses already have access to plenty of resources. If both spouses have high earning incomes and assets, even if one makes considerably more than the other, the court is unlikely to award legal fees to either side as neither is at a disadvantage or at a financial burden to pay.

  • One spouse is purposely and actively attempting to push the case to trial. Unless there is good reason to go to trial, if a spouse is purposely being uncommunicative and unreasonable in order to put the other spouse through a difficult time, a judge with see this as not in good faith and can order them to pay the other spouse’s legal fees or more.

  • The separation of an estate is a long process. If the estate that needs to be dispersed between two parties is larger and requires extra time to mediate who will receive what (and one party has a claim to much of the property), a judge may use his discretion to have one spouse pay the other’s legal fees if they become unable to pay.

  • One spouse intentionally tries to raise the other’s legal fees. This can often happen when dissolution cases are not mutual. One spouse will purposely apply for motions, ask for various files, etc. in an attempt to increase the other’s legal fees and put them at a disadvantage. A judge in these cases will often force the spouse to take on a percentage of the final fees early to keep them from unnecessary fee inflation maneuvers. 

When going through a divorce, it can be expected to be a stressful and expensive life change. It’s important to do your research and be civil with your spouse in an attempt to lower fees by coming to an agreed-upon settlement. Finding a cheap lawyer in New York or California may seem like the best option, but unless they’re going to represent your case properly and offer you services backed on experience and proper education, you may end up paying even more in the end. Contact an experienced family lawyer who works in California and New York who can give you the best chance of a smooth divorce so you can move on with your life. 

Image: Prostooleh


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