The cost of an attorney can vary widely, from divorce attorneys who charge a flat $500 fee for uncontested divorces to upwards of $10,000 in contested cases. If there is not an agreement regarding children or high net worth individuals are involved, the expense can be even more extreme.
This raises the question of “who pays attorney fees in divorce cases?” The answer depends on the specific circumstances surrounding you, your spouse, and your divorce. Many spouses pay for their own divorce attorney. In some cases, one spouse may be able to get the other spouse to pay for their divorce attorney. Here is what you need to know about who has to pay divorce costs and attorney fees.
Can My Spouse Pay Using Our Joint Account?
When two people have a joint account, both individuals generally have a right to take out funds from the joint account. Once funds are deposited to the account, the funds are usually considered property of both of them. Therefore, a spouse may be able to withdraw funds from a joint account to pay for an attorney. However, some states may order joint or even separate accounts to be frozen during a divorce or that the spouses agree before funds from a joint account are used.
Can I Make My Spouse Pay For My Attorney?
Generally, the answer to the questions, “Can my spouse make me pay her divorce attorney fees?” or “Can I make my spouse pay for my divorce lawyer,” is no. However, you and your spouse may agree to this arrangement. Under this arrangement, the question is not “Do I have to pay for my wife’s divorce lawyer?” but rather “Do I want to pay for my wife’s divorce lawyer?”
As you can imagine, many spouses disagree about this issue. The general rule is that each spouse is responsible for paying their own attorney’s fees. An attorney generally cannot represent both spouses in a divorce due to the potential conflict of interest. Therefore, each spouse will need to make arrangements regarding who pays the divorce fees.
The spouses may turn to their own separate property or to their marital property to pay for attorney fees, which are generally considered a community debt in community property states. If assets are not liquid, a divorce attorney may agree to accept property that is part of the divorce settlement as payment for their services.
There are some situations when it may not be as certain who is responsible for attorney fees in a divorce. This is usually due to the state law allowing for the awarding of attorney fees, because one spouse is financially dependent on the other, or one of the spouses has acted in bad faith during the divorce process.
State-By-State Differences
States vary in their approach to determining who pays for a divorce attorney’s fees. For example, the California Family Code provides a provision that specifically allows for one spouse to be responsible for both spouses’ divorce attorney fees if there are not sufficient available joint assets or one of the spouses does not earn enough money to pay their own legal fees. The spouse wanting their attorneys fees to be paid by the other spouse must submit a motion to this effect and a needs-based assessment is instituted to determine if an award is needed, warranted, and appropriate. The law allows a spouse to make this motion at any time during divorce proceedings.
In Texas, the decision is made at the judge’s discretion after considering the community assets and debts, the spouses’ respective financial needs and capabilities, and whether there is a disparity in the income between the spouses. Attorney fees may be awarded through mediation or by the order of a court after having a hearing related to the payment of attorney fees.
Dependent Spouses
If you are in the situation where you are concerned “my ex wants me to pay their attorney fees,” a determining factor in this issue is whether your spouse is financially dependent on you. Your spouse may be considered dependent if they:
- Substantially depend on you for their basic needs
- Stayed at home to raise children or support your career
- Do not have access to funds to pay their own attorney
- Earn substantially less than you do
Bad Faith Behavior
Another determining factor in determining the answer to the question, “Can my spouse make me pay her divorce attorney fees?” is whether you have acted in bad faith. The court may require you to pay her attorney fees if you:
- File frivolous motions to delay the process or increase the cost of the proceeding
- Hide assets
- Make false allegations
- Refuse to negotiate
- Refuse to provide required financial disclosures or other information as required by the court
- Disobey a court order
In these situations, the court may order the offending spouse to pay all or a portion of the other spouse’s attorney fees.
How To Apply For Legal Fee Help
If you are filing for divorce but do not have the money to pay the filing fees, you may be able to present an affidavit to this effect and have the court costs waived. If you need your spouse to pay your attorney fees, you will want to include this request in your divorce petition so that this issue can be decided faster, allowing you to potentially hire a lawyer to help you through the divorce process.
How Are Attorney’s Fees Awarded?
Depending on state law, the judge may consider a number of factors when determining how much in attorney’s fees to award. The judge may not necessarily order the higher-earning spouse to pay all of the other spouse’s attorney fees that accumulate or any bill their attorney presents. Instead, the judge might consider:
- The reasonableness in the attorney fees
- What type of work the attorney completed
- The resources of each spouse
- The conduct of each party
- Information in financial reports provide to the court
- The earning capacity of each spouse
- The amount of research and preparation needed in the case
Ultimately, the judge will consider what is fair under your particular circumstances when making this decision.
