Family Law

Can I Make My Spouse Pay My Divorce Attorney's Fees?

By Joseph Pandolfi, Retired Judge

Contested divorces can be very expensive propositions. With spouses arguing over everything from alimony and child support to who gets custody of the family pet, attorney’s fees can skyrocket quickly. In fact, those monthly legal invoices are what finally cause many couples to hunker down, put animosity aside, and try to peaceably resolve their differences. Often, one spouse will ask the other to pay both sides’ divorce-related legal fees. How successful that demand will be depends on the particular facts of your case.

Needs-Based Attorney's Fees

In most states, family law courts are authorized to order one spouse to contribute to the other spouse's attorney's fees, particularly when there is a large income-gap between them. In these cases, judges usually have the ability to order the higher-earning spouse to cover some or all of the lower-earning (or non-earning) spouse's fees.

In some states, like California, the policy underlying attorney fee awards is that if one spouse can afford to pay for both sides' fees, while the other spouse would have to proceed without a lawyer absent some contribution, then an order for fees will be considered both necessary and fair, in order to "level the legal playing field" between the parties.

In New Jersey, courts will order an award of attorney's fees to a lower-earning spouse -- often because it's clear the higher earning spouse will be able to recover financially after the divorce is finalized.

But in situations where neither spouse is making a sizable income, yet there’s still an earnings difference, decisions on attorney's fees are more likely to vary from state to state. For example, in New Jersey, courts aren’t likely to grant a request for attorney’s fees if the lower-earning spouse will at some point have access to marital assets that can be used to generate funds to pay those fees, such as:

  • bank accounts
  • stocks, or
  • a 401(k) retirement plan.

Even if a cash-poor spouse needs money up front for a lawyer, the court may let the spouse use some of the marital property for attorney’s fees, with the understanding that when that property is eventually divided, the other spouse will be reimbursed. (Read our article about using money in a joint account to pay for your divorce attorney's fees.)

Two-Income Households

It's becoming increasingly unusual to see judges issue orders requiring one spouse to pay the other’s divorce attorney’s fees in dual income families. Today, it’s probably less likely than in the past that one spouse is completely reliant on the other for money. When faced with spouses that each earn about the same income, courts are generally inclined to let each spouse bear the burden of his or her own attorney’s fees.

Attorney's Fee Penalties

Judges don't like it when spouses behave badly during the divorce process; not only does bad behavior drive up attorney's fees (for both sides), it also prolongs the divorce process, causes unnecessary stress, and wastes valuable court time and resources.

Some common examples of disruptive tactics include:

  • constantly filing motions (formal requests) with the court about trivial matters
  • refusing to comply with court orders (usually until threatened with contempt of court)
  • delaying providing requested information to the other spouse (such as financial documents), and
  • failing to appear for hearings or court-ordered mediation sessions.

If your spouse (or, possibly, his or her lawyer) engages in this type of behavior, it will invariably lead to your incurring much higher attorney’s fees. (Read more about typical attorney's fees in divorce.) Your lawyer will have to respond to the frivolous motions, file his or her own motions to force compliance with court orders, and keep going back to court for rescheduled hearings.

When one spouse intentionally disrupts the court process and drives up the cost of litigation, a judge might be inclined to grant the other spouse's request for attorney’s fees as a penalty for that conduct. A court may determine that it’s simply not fair for you to pay for your spouse’s behavior, and could order your spouse to pay some—if not all—of your attorney’s fees.

The laws on these issues vary by state. If you have questions about attorney’s fees awards, you should contact a local family law attorney.

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