Will my spouse have to pay my legal fees?

I love paying legal fees!

-Said no one ever.

Short answer: It depends. I bet you didn’t see that one coming, did you? Trust me, I get it. Believe it or not, I don’t like charging my clients for legal fees that they can’t afford. This is particularly true when the legal fees are the result of the other party’s want or conduct.

This happens a lot in divorces. Sometimes, one spouse does not want the divorce at all. You think: why should I have to pay for a lawyer when I don’t want to separate? Or, sometimes a client has to pursue child support monies from a parent who won’t pay. You think: why should I have to pay for an attorney to help me get money that is supposed to be paid to me? Can you relate to either of these?

True talk: if you want a lawyer to represent you in your family law matter, you are going to have to pay legal fees. Unfortunately, it is often difficult to get the court to order the other party to pay those fees. Therefore, do not rely on getting reimbursed when budgeting for your divorce. Rather, look for ways to save on your legal fees instead.

However, there are times when a court may order your ex to pay for your costs. This article will discuss the following:

• When you may be awarded legal fees in your divorce;
• When you likely won’t be awarded legal fees; and
• What you can do if you don’t have money to pay for your fees.

When you may be awarded legal fees in your divorce

Let’s start with the good news. There are times when you will be awarded legal fees in your divorce matter. Generally, you may be awarded attorney’s fees if your spouse violates a court order.

The following is an easy example of when my client was awarded legal fees for her ex’s violation of a court order. The parties had a child support order requiring father to cover the children on his health insurance because my client’s employer did not offer insurance (pre-ACA). Father changed jobs and dropped the health insurance coverage. Upon learning this, mother asked father to provide new health insurance. He did not.

As a result, I filed a petition for contempt of the order requiring him to provide health insurance. Father still did not obtain new insurance and we had to go to a hearing to get him to comply. As a result, I was awarded legal fees for having to take the case all the way to a hearing.

This case is an excellent illustration of the elements you need to have the best chance to be awarded legal fees:

• An existing court order requiring the parties to do something;
• A clear violation of that existing court order by one of the parties;
• An attempt by the injured party (in this case, mother) to resolve the issue prior to seeking court assistance; and
• Failure of the other party (father) to remedy the problem prior to a hearing before a judge.

Regular divorce case misbehavior is not likely to result in an award of legal fees.

Second, you may awarded fees if you can establish that your spouse has engaged in a pattern of conduct which caused you to spend extraordinary and unnecessary amounts of money to finalize your case. However, in my experience, this case for fees is not a slam dunk. The courts assume that there is going to be acrimony in every divorce matter. And with acrimony comes parties behaving badly.

Thus, you (and your attorney) will have to show that your spouse really went above and beyond regular divorce case shenanigans to be awarded fees. Some examples include:

• Consistently filing frivolous and unsuccessful petitions with the court;
• Hiding information about income or assets;
• Blowing off court appearances, court ordered therapy, or other mandatory appointments;
• Unnecessarily delaying the sale of a residence; and
• Consistently making even the smallest issues into major disputes.

A combination of the above is going to make it more likely that you will be awarded attorneys’ fees. Again, I can’t stress enough how much counsel fees are not guaranteed for general misconduct. You really need to show that your spouse’s behavior is outrageous, even by divorce case standards.

When you likely won’t be awarded legal fees

Okay, you knew the bad news was coming. In general, you will not be awarded legal fees for routine and necessary expenses resulting from a divorce. Just like a utility bill, legal bills are necessary to “keep the lights on” in your divorce or family law matter. Why?

The courts assume that you are going to have to sometimes deal with issues of basic misconduct or non-compliance by the other spouse. As a result, they are not going to awarded legal fees for those expenses.

Examples of behavior that won’t get you legal fees

• Sending a follow up letter (or two) to the other side to illicit a response to a settlement proposal or to address an issue that has come up in the case;
• Delaying the signing certain documentation such as deeds, taxes, and/or consent forms that does not result in any financial consequences;
• Filing petitions or complaints that have legal basis (even if you don’t agree with them!);
• Appealing court orders;
• Having your attorney prepare certain documents that you think the other side should have prepared instead; and
• Involving attorneys in minor issues that you think your spouse should have resolved with you directly.

Whether you like it or not, the examples described above are just part of a divorce case. It is anticipated that the case is not going to go smoothly and efficiently all the time. Don’t waste your money trying to get legal fees for these types of actions.

What you can do if you don’t have money to pay for your fees

By now you are probably thinking, okay Liz, I get it, I’m going to have to pay for the fees for my divorce whether I like it or not. Good, you’ve been paying attention. But what if you don’t have the money to pay your attorney? Here are some things you can do:

• Read my article about how to save money on legal fees (and follow my advice);
• Request an interim distribution of marital assets which you can use to pay your lawyer;
• Take out a loan against your 401(k) or a personal loan;
• Use your credit card (at least you get points);
• Borrow money from a friend or relative;
• Work out a payment plan with your attorney; and
• Represent yourself in parts of your matter (last resort!).

Conclusion

I wanted to see if my opinion on legal fees held up in other states and countries. So I put the question to my followers on Instagram. The general consensus was that legal fees are generally not awarded in divorce matters except for extreme examples. As always, check with your attorney to see if the unique facts of your case warrant a different opinion. Have a question about legal fees? Have you been able to obtain legal fees in your case? Comment below!