Attorney's Fees - Who Gets Them and When: Part 1

More often than not, prospective clients come to the initial consultation with questions about attorney’s fees. Can they make their spouse pay? Will they have to pay? Why has their spouse requested them in their petition for divorce? And so on. No matter what the question is, there is a common theme – attorney’s fees, especially the idea of attorney’s fees in a family law case, can be confusing at best and terrifying at worst. My purpose in writing this series of posts is to take some of the mystery away.

First of all, virtually every person asks for attorney’s fees in their initial divorce petition, whether their case is contested or not. No, it does not mean that you will have to pay the other side’s fees on top of your own. In the vast majority of family law cases that settle, attorney’s fees are allocated in a manner where each side pays their own. In the other portion of cases that go to trial, even then the court usually orders each side to pay their own fees.

But, here’s the caveat – in a divorce attorney fees for both sides are typically paid from the community estate. This means that while your final order will likely say that each side pays their own, in all likelihood the community is footing the bill for everything. Practically speaking, this means that the more that comes out of the community estate in legal fees for you and/or your spouse, then the less that you or the court will have to divide when the divorce is final, ultimately meaning a smaller piece of the pie for each of you.

What all of this means is that when at all possible, it will be better for both you and your spouse if you can reach an agreement – allowing you to both maximize your share of the community estate by minimizing attorney’s fees. Will this always be possible? Of course not. Settlement requires good faith effort on both sides. When you don’t have this, then you will probably need to spend money on attorney’s fees to reach an acceptable resolution to your divorce case.

Stay tuned for my post next week on the statutes that apply to attorney’s fees in your divorce.

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