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Attorney’s Fees

Attorney's fees, etc., "awards" or contributions by one spouse toward the costs of the other

On the other hand, the potential costs for the spouse seeking spousal support do provide a bit of brake on possible abuses in this regard. Although awards in consideration of attorney's fees, costs and expenses are in effect an element of spousal support awards, because, by the time of the temporary support hearing neither spouse has proved or disproved the claimed "grounds," typically the amounts awarded as "pendente lite" "suit money"; will "buy" very little in terms of competent assistance. And, in divorce cases, "contingent fees" are verboten, as unethical; hence, even here, cost-benefit calculations play a significant role.

As to attorney's fees awards at the conclusion of the case, the spouse awarded "permanent" alimony probably should consider her (or him) self fortunate if one-half of the amount expended is awarded by the Court (even where claimed grounds are found to be baseless, attorney's fees awards usually are not ordered where the defending spouse's income is substantially similar to or in excess of that of the other spouse). Since it virtually always necessitates a five-figure expenditure to litigate a case fully,(30) the resulting cost-benefit calculations should be somewhat sobering for the prudent divorce case litigant.

Because of these potential "facts of life, " typically Agreements either do not provide for one spouse to pick up the attorney's fees tab of the other; or, if included, provision is made only for an amount substantially less than the award which could be expected at the conclusion of full-fledged litigation of the case. On the other hand, because of the inability of many potential spousal support seekers to sustain full-fledged litigation, often a significant "contribution" in this connection is in effect dangled as a bit of a "carrot" during negotiations between counsel.

Finally, a ray of "hope" for our consultees and clients in this connection. That is, with respect to calendar years in which you and your spouse file separately from each other (only), our fees and expenses are tax deductible to the extent that any (combination) of the following factors were actually involved in your expenditures:

  1. Attempts to obtain alimony, or "defending" against such requests;
  2. Attempts to obtain or attempting to protect "income-producing" property;
  3. Tax-related advice and assistance.

For our then- "current" (i.e., in bill-payment terms) clients (as opposed to mere consultees), upon request, we provide, free of charge, our written estimates of such allocations in their respective cases (which, to our knowledge, have never yet been challenged by the I.R.S.!). All domestic case participants, certainly, however, are capable of attempting to figure their own estimates in this regard.

30 One Fairfax Judge often even "advised" litigants in early stages of cases before him that "fully- litigated" cases those days necessitated $15,000-$20,000 expenditures by each spouse, on the average . . . The Judge was thus referring to expenditures through the final trial Court determination only. Appeal often necessitate additional "five-figure" expenditures by each spouse. And years later, that Judge was heard to reference the fact that, occasionally, the attorney's fees, costs and expenses on each side can amount to $50,000- $100,000. Jeff Krause's estimate these days is at least over $20,000, for the "fully litigated" case (through one trial only); with the $30,000-$40,000 range being more typical.

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