Who Pays the Attorney Fees in a Divorce?
The answer to the question who pays the attorney fees in a divorce depends on the specific circumstances of each case. However, there are a few general principles that apply across all cases. The principle of equity applies to every decision made in a divorce, regardless of the specifics of the legal issues. The judge should consider the spouses’ financial situation, as well as the merits of their cases.
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If there is a substantial income disparity between the parties, the higher-earning spouse may be required to pay the attorney fees and other expenses of the lower-earning spouse. In addition, if the parties are dependent on each other for support and maintenance, such as a stay-at-home parent who sacrificed their career or earning potential to raise their children, the court may award needs-based attorney fees and alimony in favor of the dependent spouse.
Depending on the court, this may be a discretionary decision or a mandatory order, which means that the judge must make the award after considering all the relevant factors and determining whether the costs are fair and reasonable. In both instances, the judge will seek to level the playing field so that each party has a fair chance of asserting their rights in the divorce proceedings.
In some cases, a dependent spouse can ask the court for an award of attorney fees as a form of post-separation support. This can be especially helpful for spouses who do not have access to finances in their name, as a result of the other party’s behavior.
A dependent spouse can also ask the court for a fee advance on their equitable distribution at the beginning of the divorce case, so that they can pay their own lawyer. Once the divorce is complete, the dependent spouse will be awarded access to the funds from their share of the assets in their final distribution order.
Usually, the more the parties agree to settle their divorce, the more likely it is that they will both be off the hook for their respective counsel fees. This is because it is more efficient and less costly for the system to allow both parties to pursue settlement instead of dragging out their divorce by taking cases to trial.
If a party has acted in bad faith, such as failing to file documents, appear in court or make discovery requests in a timely manner, then that person can request that the court order that the other spouse assumes their attorney fees. This is often seen in cases where a party was unnecessarily dragging out the divorce process for any reason other than to pursue fair and equitable results.
In addition, many legal aid organizations offer pro bono services to disadvantaged individuals in need of a lawyer. Contact your local legal aid organization to learn more about these services and how they can help you in your divorce.
Ultimately, the best way to determine who pays the attorney fees in your divorce is to consult an experienced family law attorney. He or she will be able to advise you on your legal options, as well as how to get the most out of the process.