Who Pays for Legal Fees in a Divorce?

Legal Fees in a Divorce: An Introduction

When allegations of divorce dance on the horizon, legal fees can become associated with fear of what’s to come. Will I be responsible for divorce legal fees? Can I ask my spouse to pay my divorce legal fees? What happens if I cannot afford a lawyer? Amidst such uncertainty, you may wonder: What if I ask my spouse to pay my legal fees?
Simply put, divorce legal fees are the attorneys’ fees a divorcing party must pay in order to facilitate their divorce. Such fees are intended to cover the legal costs of processing a divorce. Depending upon the scope of the divorce and the complexity of the case, divorce legal fees can range anywhere from hundreds to thousands of dollars or more, with both sides potentially sharing the costs.
In general, divorce legal fees cover services rendered by attorneys, paralegals, secretaries, and others who provide necessary support in processing and resolving your divorce . Some fees can be expected, even in a straightforward, uncontested divorce without children or considerable marital property, particularly when separating a spouse’s combined assets and liabilities. If children are involved, you can also expect additional costs associated with custody arrangements, child support modifications, etc. More complex divorces — involving business interests, substantial assets, or contentious allocation of marital assets — will take considerably more time and money.
Spouses contemplating divorce should expect to incur some legal fees. There is no way around it; they’re an inescapable part of the process. In fact, many attorneys require a retainer — an advance against expected legal fees. Thus, the sooner you attempt to resolve divorce-related issues, the sooner you will understand the approximate fees involved, and the better able you’ll be to plan accordingly.

How Are Divorce Legal Fees Paid?

For most cases, in the context of the divorce process, the parties are responsible to pay their own attorney’s fees on an ongoing basis. The general rule is that each side pays their own attorney as well as the experts they rely on for purposes of discovery. In a typical divorce case, each party retains an expert to value the marital estate, do a business valuation, do a vocational evaluation, perform an imputation of income or other such things. So, you will typically have different experts doing work and the parties are responsible for the payment of those experts, in addition to their attorneys. The reason for this rule is that the law acknowledges both sides should be equally proactive in the discovery process to obtain the information necessary for a fair resolution. So, unless there is a specific reason why one party should be responsible to the other for payment of their fees, which I will get into, typically, it is each side pays their own.
The most common exceptions to the each side paying their own fees are when one side is significantly underemployed or not employed, and the best example of that is a stay-at-home parent having a need for financial support from the other parent. In theory, parties who serve certain roles properly are supposed to be entitled to some sort of marital allowance to cover living expenses. What as a practical matter happens, unfortunately over and over again, is that the stay-at-home parent at the time of separation just immediately loses the benefit of financial resources and has no choice but to be reliant on the other spouse for the resources needed to carry him or her through the process. This is the scenario I would say where we most typically see the need for one side to pay the other’s fees. And what happens is, if there is a need, one side files a motion for interim relief and seeks that the other party pay for their fees. The way the law works is that if the motion is filed, the party seeking the fee award has the burden to establish the right to it, and by way of an example, if the stay-at-home parent files the motion, he or she must establish that they need a set sum to pay their divorce lawyer, so much to pay their expert, so much for this, so much for that – in the motion for interim relief, a budget is usually typically provided. It is then the paying party’s obligation to file a response to the motion, which sets forth their side of the story. And then, the judge decides what each party will contribute to the other, and if an award is necessary, how much the award should be. Ideally, the judge’s award gets both parties to within their budget range.
The other scenario where we do see parties typically dividing and sharing payment of their attorney’s fees is in a situation of fault. Under the law, a judge may make an award of fees to the innocent spouse when based on conduct during the marriage. If one side files a motion alleging that the other was at fault, such as through extramarital affairs, big gambling debts, hidden assets, criminal charges or other such things, then the judge may award the innocent party an attorney’s fee award – that, generally, is about the only time.

Court Examples of Awards for Legal Fees

While the statutory scheme (N.J.S.A. 2A:34-23.1) permits the court to order an interim counsel fee award to the lesser-moneyed spouse to ensure that he has sufficient funds to continue to litigate, the court must first be satisfied that a need exists on the part of the lesser-moneyed spouse and then look to the greater moneyed spouse to see if he has the ability to pay. The rule implicitly assumes that the lesser-moneyed spouse has no other non-marital assets to draw on, since an appropriate investigation is intended to maximize the interests of both parties, and counsel fees can be exorbitant. Thus, the rule is to assure that each party has access to a "level playing field". H.E.S. v. P.C.S., 376 N.J.Super. 232, 238 (App. Div. 2005).
For example, in the case of H.E.S. v. P.C.S., supra., the Court denied a motion for counsel fees where the lesser-moneyed spouse was already receiving $20,000.00 monthly in child support and $6,000.00 in monthly permanent alimony while the greater-moneyed spouse earned $30,000.00 – $40,000.00 per month. Noting the disparity in income, the Court nonetheless held that where the party already had substantial means on her own, this may be a factor in denying the motion. See also, Martin v. Martin, 231 N.J.Super 35 (Ch. Div. 1986), motion denied, 235 N.J. Super. 529 (App. Div. 1989).
Specifically relating to the issue of unemployment, the court found that the party who is out of work and seeking an award for counsel fees cannot simply state that she does not have an ability to pay counsel fees, but must provide financial information necessary for the resolution of the request. H.E.S. v. P.C.S., supra.

Legal Fees: Awards and Reimbursements

Awards of attorney’s fees, often called "counsel fees," in divorce is governed by the principle that what is fair and equitable under the circumstances. In other words, the court has broad discretion to make awards as equity and fairness dictate.
Given this broad standard, there is no bright line test for determining when a party is ordered to pay the other’s counsel fees. It is, therefore, not unusual for awards to come down on both sides.
Whether the Court will award counsel fees and the amount of an award is based on the facts of the case, including the extent to which each party has the ability to pay his or her own counsel fees. A party with substantially more liquid assets or income than the other party is more likely to be ordered to pay for at least some of the other party’s fees.
Generally, the Court looks at the financial disparity between the parties in determining whether an award of counsel fees is appropriate and the amount of such awards. Thus, if party A has a net worth of $100,000, while party B has a net worth of $5,000, the Court may well deny all requests for counsel fee awards. Conversely, where party A can prove a substantial date that party B has delayed the matter by making groundless motions and discovery demands solely to harass party A, the Court may award party A its counsel fees.
There is no requirement that a party seeking fees demonstrate financial need. On the other hand, a party seeking fees need not demonstrate improper conduct on the part of the other party to have an award of fees granted. Of course , if one party does engage in improper conduct, the Court can require the other party to pay his or her legal fees up to the amount directly resulting from the improper conduct.
Although one party’s ability to pay legal fees is certainly relevant, the Court can equally consider the other party’s overall financial condition. Thus, a Court may reject a request for counsel fees by one party despite evidence that the other party has the ability to pay. Where the party without the ability to pay has custodial responsibility for the children, is disabled, or is significantly older than the other party, such an award may be disallowed.
There are a wide variety of ways in which the Courts will fashion the details of an award of counsel fees. Sometimes, the Court will simply award counsel fees as they are incurred, without providing a reason for granting it. Other times, the court will set a cap on the fees to be paid, or a specific hourly amount, or a percentage of the fees requested.
The fees paid by a party pursuant to a Court Order will not affect the amount of equitable distribution to be paid to that party. That is, the fees paid do not reduce the equitable distribution award. On the other hand, where the Court finds that a party’s bad faith conduct delayed litigation and increased costs, and the plaintiff is unable to pay all of the fees, the Court may authorize the other party to deduct the amount of the bad faith award from the equitable distribution share due to the bad faith litigant.

How to Handle Divorce Legal Fees

There are several tips that may help individuals manage their legal fees during divorce. Consider the following suggestions:
Seek the help of paralegals and legal aid clinics
To be successful in your case, you do not necessarily require a legal degree. In some cases, you can save money by hiring paralegals instead of lawyers. This is particularly true for straightforward procedural matters, such as filing a Notice of Family Claim and obtaining a divorce certificate.
Legal aid is another potential source of assistance. Legal aid can provide free legal advice or refer you to a lawyer who can assist you at a reduced rate. However, keep in mind that legal aid is not available for all cases, and you will likely have to prove that you are unable to afford a lawyer.
Negotiate with your partner
If you are going through divorce – and hopefully it’s amicable – you could save money by negotiating directly with your spouse. In general, people who represent themselves before the courts will be spending less than someone who hires a lawyer. If your partner’s lawyer is prepared to negotiate, and they offer a fair financial settlement, accept it.
If you can’t reach an agreement
When a couple can’t agree on how to divide assets, or when child custody is in dispute, one or both parties may decide to retain lawyers and fight an ugly legal battle in court. Contested divorces are complicated, and they will invariably result in high legal fees.
Work with a qualified lawyer
Ultimately, if you’re hiring a lawyer, you want someone who has relevant experience. After all, this is your life we’re talking about, not a video game. When meeting with a lawyer for the first time, ask for their credentials. How long have they been practicing? Are they used to dealing with contested divorces? What kind of results have they achieved for their clients?
Many lawyers will offer one or two free consultations, which can be an excellent opportunity to assess their skills and affordability. Ask the lawyer how many hours you will need to spend in order to bring the divorce to completion. Give them a realistic picture of the issues in dispute. If your partner is in agreement, the process will go relatively quickly.
If your spouse is not in agreement, this will probably be a protracted legal battle. Be prepared to pay.
Many couples who are battling through a divorce in court will find that they have to meet with opposing council for purposes of drafting a Statement of Claim. They may also have to meet for mediation. Each of these meetings requires the services of a qualified lawyer.
Finally, both you and your partner will need accountants to help divide your assets and determine whether child or spousal support are owed. This can also add up extraordinarily fast.
The bottom line
There is no way to completely avoid using family law services while going through divorce. Legal fees are an unfortunate but inevitable aspect of a divorce. Start by seeking other means of assistance and negotiating a fair settlement with your spouse. Then, and only then, hire a lawyer and accountant.

Conclusion

In this article, we explored the question of who pays the legal fees in a divorce, a question that is often essential to a person’s ability to get through the divorce process. We looked at how to decide whether one spouse will pay the other’s fees, as well as an exception to the general rule that spouses are responsible for their own fees. We also examined how fees are paid in certain types of cases , including those involving domestic violence and the division of marital assets.
The answer to the question of who pays the legal fees in a divorce is highly fact-specific and unfortunately, difficult for the average person to determine without first speaking to a family lawyer. By learning about these issues in advance of obtaining a divorce and by taking them seriously, however, you can usually save yourself a significant amount of money and substantial issues down the road.