Although it may be true that “no good marriage ends in divorce,” it is just as true that the worthwhile process can be a strain both emotionally and financially. Not only are you dividing your assets, but each of side will have attorney’s fees for just about everything the divorce involves.
One of the most frequently asked questions in divorce cases is, “Can I get my spouse to pay my attorney’s fees?” The majority of family law attorneys charge by the hour, which means you can be billed for time your attorney spends on phone calls, meetings, emails, legal research, and court appearances in their crafting the best individualized approach and arguments for your case. The costs can add up, but the old adage that “you get what you pay for” rings especially true in divorce cases. Although some individuals think they might be better off representing themselves in a divorce proceeding to save money, the fact of the matter is they will be at a significant legal disadvantage if the other spouse can afford an experienced and aggressive family law attorney.
However, there are remedies for this! Firstly, if you are a dependent spouse who qualifies for alimony payments or other post-separation support, you can petition the court for an award of attorney’s fees. An order awarding Spouse 1 attorney’s fees means that Spouse 2 must assume legal responsibility for Spouse 1’s reasonable legal costs. An award of attorney’s fees can also be available if one spouse has behaved in bad faith and caused the litigation to drag out unnecessarily. Finally, if an award of attorney’s fees would not be applicable to you but you still face difficulty paying your legal fees, you can also petition the court asking for an advance of your portion of division of property from the divorce.
Do I Qualify for an Award of Attorney’s Fees?DEPENDENT SPOUSE IN NEED:
In North Carolina, if a spouse qualifies as a “dependent” spouse who is entitled to alimony or other post-separation support, the court can award that their reasonable attorney’s fees also be paid by the supporting spouse.
A person qualifies as a dependent spouse eligible to receive post-separation support if the Court determines that the spouse substantially depends on the other for maintenance and support. The most commonly used example of this is a stay-at-home parent who sacrificed their earning potential or career in order to raise children of the marriage and maintain the household. However, working spouses can also be determined dependent spouses. Other times one spouse will have all financial accounts and assets in their name so the dependent spouse does not have access to pay for their own attorney.
In making these determinations the judge will look at all relevant factors, including the dependent spouse’s disposable income (i.e. total income minus necessary living expenses) and separately owned property.
BAD FAITH/FAULT:
A judge will also sometimes award attorney’s fees based not on the financial status of the party but on the basis of fault. Sometimes one side in a divorce case will engage in bad faith behavior that causes a case to drag out unnecessarily, causing the innocent spouse’s attorney’s fees to increase unfairly. This can occur when one spouse engages in frivolous litigation by making false allegations about the other spouse or refusing to negotiate; other times it can take the form of disobeying a court order, hiding assets, or refusing to provide documents. In such a case the Court can, at its discretion, order the at-fault party to pay some or all of the other party’s attorney fees.
Attorney’s fees can be awarded for the following family law proceedings:
Attorney’s fees are not usually available for the division of property, or equitable distribution, portion of a case. Equitable distribution can be brought with an action for divorce or as its own separate action.
One exception to this rule allows for reasonable attorney’s fees for a spouse who owns separate property and is suing the other to regain possession of their property.
As described above, there is also an exception that can result in attorney’s fees for the innocent spouse when the bad faith of the other spouse has unreasonably dragged out the divorce proceeding.
When a divorcing couple’s financial situation is not completely one-sided, courts will sometimes order the spouse with a larger income to pay a percentage of the other party’s attorney’s fees in proportion to each spouse’s income.
How Do I Ask for Attorney’s Fees?The dependent spouse must be the side to petition the court and ask for an award of attorney’s fees from the judge. It is generally done as soon as possible in the beginning of a divorce case so that the dependent spouse can obtain quality legal counsel for the remainder of their case.
Advance on Equitable DistributionIf a spouse does not qualify for a full or partial award of attorney’s, there is still another option to make paying divorce attorney’s fees feasible. A spouse can petition the court to receive an advance on their portion of equitable distribution in the beginning of a divorce case to pay for attorney’s fees. If granted by the judge, this will allow that party to foot their own legal bill by awarding interim access to funds the spouse will be receiving in the final distribution order once the case is complete.
Although it may seem ironic that you may need an attorney to help you prove that you can’t afford an attorney, the family law attorneys at Arnold & Smith PLLC are experienced in helping clients negotiate and win attorney’s fees in divorce cases. As this article displays, there are numerous ways in which to win attorney’s fees in a divorce case and it is important that the available legal arguments be made in your favor to the fullest extent possible. Arnold & Smith, PLLC’s Family Law Practice provides dedicated counsel in a variety of family law cases, including separation and divorce, child custody and support, alimony, and adoption. Contact us today to arrange a consultation with one of our family law attorneys about your case.