Will I Have To Pay My Spouse's Attorney Fees?
August 1st, 2008
A very serious question -- as the divorce process can take a significant financial toll on you and your spouse. Unless you are representing yourself, you and your spouse will likely be paying an attorney for representation. I am often asked the question: Will I have to pay for my spouse's attorney? There is no easy or simple answer. The answer will depend on the specifics of each case.
Attorney's fees in divorce proceedings can be awarded in two situations:
- First, attorney fees can be awarded when there is financial need on the part of one spouse and there is an ability to pay on the part of the other spouse. Need-based attorney's fees, as they are called, are often awarded when there is a significant income disparity between the parties. A request can be made early on in the proceedings or at the very end. The court must make particular findings on the issue of need before attorney fees can be awarded.
- Conduct-based attorney fees can also be awarded by the court in those situations where the court finds that the conduct of one party has needlessly increased the length or cost of the proceedings. These fees are awarded as a "punishment" for one party’s unreasonable conduct. Again, the court must make specific findings regarding the conduct of the other party before attorney fees can be awarded.
See below for the full text of the attorney’s fees statute in Minnesota.
518.14 COSTS AND DISBURSEMENTS; ATTORNEY FEES; COLLECTION COSTS.
Subdivision 1. General. Except as provided in section 518A.735, in a proceeding under this chapter or chapter 518A, the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
Nothing in this section or section 518A.735 precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding. Fees, costs, and disbursements provided for in this section and section 518A.735 may be awarded at any point in the proceeding, including a modification proceeding under sections 518.18 and 518A.39. The court may adjudge costs and disbursements against either party. The court may authorize the collection of money awarded by execution, or out of property sequestered, or in any other manner within the power of the court. An award of attorney's fees made by the court during the pendency of the proceeding or in the final judgment survives the proceeding and if not paid by the party directed to pay the same may be enforced as above provided or by a separate civil action brought in the attorney's own name. If the proceeding is dismissed or abandoned prior to determination and award of attorney's fees, the court may nevertheless award attorney's fees upon the attorney's motion. The award shall also survive the proceeding and may be enforced in the same manner as last above provided. Copyright © 2007 by the Office of the Revisor of Statutes, State of Minnesota. All rights reserved.