In most cases, spouses follow the American Rule
for paying divorce attorney fees and court expenses. The rule states that each party has to pay his/her attorney’s fees if it is provided for in a contract or statute. In the following circumstances divorce attorney fees can be recovered from other party:
- When the income disparity between the spouses is considerable.
- When one party submits an application to the court for an award of legal fees, and the court directs the other party to bear the cost.
A court can order the award of attorney fees according to state laws. For example, Utah’s Code Section 30-3-3(1) allows the courts to order a spouse to pay attorney fees, either fully or partially. The same code section also specifies that if the spouse who has petitioned for award of attorney fees can take care of herself/himself by earning an income or by any other means, the award can be denied.
Here’s the breakdown of the circumstances in which a court can award legal fees to a spouse:
When one spouse is the breadwinner and the other spouse a homemaker, or when one spouse is employed in a high-paying job (for example, a surgeon or a lawyer) and the other in a less high-paying job, the disparity in income is huge and the court is likely to order the “monied” spouse, or the spouse who has more control over the home finances, to pay the legal costs.
From our experience, huge income disparities occur in 2–3% of divorce cases filed in Utah. In these cases, the “monied” spouse is directed by the court to pay the other party’s attorney fees.
Application for Award of Legal Fees
Typically, a dependent spouse who is eligible for alimony or post-divorce support petitions for an award of attorney’s fees. In some cases, a spouse can petition for legal fees if the other spouse has deserted her/him, committed adultery or some other unjustified or cruel act.
If one party has applied for an award for recovery of legal costs, the court considers a variety of factors for calculating the legal fees that can be awarded, such as the petitioning spouse’s earning capacity (existing as well as future), the nature of the case and its complexity, the average fees charged by attorneys in similar cases, length of litigation, and the final outcome of the case.
In some cases, usually involving violations of a court order, the court orders the non-prevailing party to pay a good portion of the attorney’s fees of the prevailing party.
Awarding attorney fees is not an exact science. It depends on the facts and complexities of the case.