Who Pays the Attorney Fees in a Divorce? 

Who pays the attorney fees in a divorce? There are several factors that determine this. For one, the more affluent spouse can afford to litigate a case longer. The other factor is that Courts tend to favor the more affluent spouse. In some situations, post-separation support is available for a spouse who is dependent on the other party for support. In other cases, the spouse who is less wealthy may be on the hook for the other party’s attorney’s fees. 


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Dependent spouses qualify for post-separation support 

If you have a child or children, and one of you is dependent on the other for financial support, you may qualify for post-separation support during a divorce. Although there is no formula for determining the amount of post-separation support, the court will consider the needs of the dependent spouse, the supporting spouse’s income, and the parties’ obligations to minor children. 

PSS is generally paid monthly or in lump sums. The support may last a set period of time or until alimony is decided by the court. The amount of PSS awarded may also have tax implications. Previously, post-separation support was taxable income to the receiving spouse and a tax deduction for the payer. However, since the Tax Cuts & Jobs Act (TCJA), this support is no longer tax-deductible. For that reason, it is important to consult with an attorney and a tax advisor. 

More affluent spouses can afford to litigate longer 

Whether in court, mediation, or at the negotiating table, more affluent spouses can afford long and expensive divorce battles. Their wealth often allows them to hide assets or refuse to release financial records. They can also file frivolous motions or false allegations, which can make the divorce even more acrimonious. If the divorce is contested, the more affluent spouse may be ordered to pay the other spouse’s attorney fees. 

If you are a more financially wealthy spouse, you may be wondering how you can best handle a high net worth spouse. Unfortunately, this is not an uncommon problem. More affluent spouses can hire the best divorce lawyers and support personnel, which can make the process more expensive. If your spouse has significant assets, they may be able to hide them to avoid paying for a divorce attorney. 

Courts are less likely to award legal fees to a less-monied spouse 

One of the primary reasons that courts are less likely to award attorney fees to spousal maintenance recipients in divorce is the level of income that each party brings to the table. In the case of the less-monied spouse, this means that the less-monied spouse must either sell substantial separate property or make a significant down payment on a home to pay for the attorneys’ fees. This may be difficult for a less-monied spouse to accomplish, but it is possible to convince the court to award fees to a spouse who is less-monied. 

In high-asset divorces, one spouse may make substantially more than the other. However, even if both spouses are able to pay their attorney’s fees, the less-monied spouse cannot expect the higher-earning spouse to cover the cost of the litigation. A less-monied spouse’s ability to afford an attorney’s fees may be considered a factor in a divorce case, but it is possible to obtain an award of attorney fees if your less-monied spouse is uncooperative. 

Courts tend to favor parties with more financial resources 

In a standard divorce dispute, the two spouses should cooperate to maintain their civil behavior and try to settle as quickly as possible. While both spouses should pay their own attorney fees, if one of them does not, the court will order the other to pay for it. When determining which party pays the attorney fees, the judge will consider the reasonableness of the actions of each party.