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The Divorce Encyclopedia
Attorney Fees

Term Definition Attorney Fees - the compensation owed to a lawyer for legal work.
Application in Divorce After health care costs and higher education, litigation is one of the most expensive enterprises an ordinary person does in his or her lifetime. Payment of the lawyers, therefore, is a consideration in deciding to go to court. The bills for a litigated divorce can be eye popping, and they can substantially reduce the wealth of a divorcing couple.

When a divorce appears headed for trial, lawyers prefer to work with a contract between them and the client, with a up-front payment of a retainer fee. The lawyer works at an hourly rate. Typically, the total number of hours multiplied by the hourly rate is the lawyer’s fee. (This fee does not include attorney costs such as copying costs, service fees, telephone charges, travel expenses, filing fees, expert witnesses.) When a lawyer is retained, the agreement between lawyer and client spells out the terms of the arrangement.

In uncontested actions, where legal costs are much lower than litigated divorces, divorcing spouse pay their own costs.

Sometimes the parties may not have sufficient funds to pay the lawyers until the assets are divided.

American courts generally do not order the parties to pay each other’s legal fees; however, in some cases, jurisdictions by statute permit courts to award attorney fees in domestic relations cases.

In general, courts consider the financial positions of the parties, and the court has the discretion to order one party to pay all or some of the other party’s attorney fees. In general, a spouse receives a fees award if 1) he or she lacks the ability to pay and 2) the other spouses has it. Courts consider both assets and income in making this determination, but they put more weight on income than assets.

Courts consider the conduct of the parties in awarding attorney’s fees in divorce actions, and the actions of parties who raise unnecessary issues or raise issues in bad faith may be sanctioned with attorney fees. Courts consider the nature of the action and the nature of the issues. For example, attorney costs spent negotiating with opposing counsel are subject to award, but the cost of extensive travel time may not be.

In general, divorce courts in the United States follow the American Rule, which means that the winning side in litigation is not entitled to an award of attorney fees because of success in winning the case, but the American Rule has exceptions. In some cases, a spouse who has forced a court to enforce a property distribution order has been ordered to pay attorney’s fees.

In general, therefore, in the United States domestic relations courts may award counsel fees and costs to a litigant based on good faith, bad faith, need and ability to pay. This means that a victory in divorce court does not automatically mean the opposing party has to pay the plaintiff’s legal fees. In divorce actions, lawyers can encourage clients to behave by warning them that unreasonable behavior may cost them substantial legal fees. Such behaviors includes unreasonable legal maneuvering, refusal to cooperate in discovery, and failing to obey court orders.

Courts in some jurisdictions have held that payment of attorney fees for a divorce out of marital funds is dissipation of assets; others have not.

The burden of proof is on the party asking the court to make an attorney’s fee award.

In some types of litigation, such as personal injury case, an attorney may be paid on a contingent basis -- a percentage of the award recovered. In divorce actions, attorneys may not charge a contingency fee; yet in some jurisdictions, family and marital law actions following a divorce, such as enforcement of property division, may be on a contingent basis. Tort actions between spouses may be brought "outside the dissolution of marriage arena," and thus on a contingent basis.

See American Plan.

See also Dissipation.

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