Who Pays Attorney Fees in a Divorce?
Divorce is a stressful, costly process that involves dividing marital assets and resolving many legal issues. You and your spouse are going to need expert legal counsel to protect your interests in the courtroom and at home.
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Attorneys charge by the hour and they can be expensive. Typically, you will sign a retainer that ensures your lawyer is willing to work on your case for an amount of money that is guaranteed. This guarantee prevents an attorney from withdrawing from the case without court approval and it also guarantees that your lawyer will be paid a minimum amount for their services.
Your attorney will bill for their time and may also have a separate rate for specialized legal help, such as paralegals or discovery specialists. You will need to pay these charges in addition to your lawyer’s hourly fee.
You and your spouse should discuss your respective financial circumstances before deciding on whether to pursue attorney fees in the divorce. You will likely have to share expenses for things such as alimony, child support, and property division, so it is important to understand your financial situation and how much you can afford.
The conduct of the parties – If you and your spouse are behaving badly during the pendency of your divorce, this will not be considered a good thing by the judge who is making the decision on how to allocate attorney fees. A good spouse will take the initiative to negotiate with their opponent and try to resolve issues efficiently and reasonably, while a bad spouse will run up everyone’s legal bills and not do anything to facilitate settlement or reduce the costs associated with litigation.
When a party’s conduct has led to an award of attorney fees, this can be appealed to the courts. The appeals courts are deferential to the trial courts, and they generally uphold the judge’s findings in most cases.
Typically, the court will consider almost all sources of income in determining who can pay attorney fees. This includes earnings, community property, and investments. The court can also take into account the income of a spouse’s new mate or partner if they share expenses and their income is not significantly reduced due to their work.
If your spouse does not have sufficient income to pay the attorney fees, they can apply for a poor person application to waive them or they can ask the court to order that the attorney fees be reimbursable in an equitable distribution of property. The court will look at a variety of factors to determine whether an award of attorney fees is appropriate, including the conduct of the parties and the services provided by counsel.
Cost-shifting is a common practice in New York where the courts want to ensure that one spouse does not have more resources than the other and that both parties receive equal representation. In these cases, the court orders the spouse who has more income or resources to assist the spouse with lower income or resources by paying for their attorney fees.