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In Divorce Cases, When Can You Get Attorney's Fees?

Divorcing spouses often hope that a judge will award them attorney's fees as part of a crushing legal victory over their former partners.

As satisfying and poetic as it might be to have your ex-spouse pay for your divorce lawyer, in most cases, the bill is on you. Generally speaking, it's only in extreme or special circumstances that you'll be able to get someone else to pay your divorce attorney's fees.

So in a divorce case, when can you potentially get attorney's fees?

Winner Does Not Generally Get Attorney's Fees

To the winner go the spoils, but not typically attorney's fees. The general rule in American civil practice is that each party pays its own attorney's fees, regardless of who is the "winner." Lawyers who work on a contingency basis may promise their clients that they will not have to pay unless they win, but that's not an option for divorce lawyers.

Divorce lawyers are ethically barred from working on contingency, meaning that if you want a lawyer to represent you in your divorce, you should expect to pay. That doesn't mean that your divorce attorney won't be open to flexible payment options, but you should remove the expectation that your ex-husband or ex-wife will cover your tab if you win.

Prenup May Potentially Include Fee-Shifting Provision

While there is no general rule awarding attorney's fees to the prevailing party in litigation, parties may be able to enter into private legal agreements to award attorney's fees to the winner. These contract clauses are called attorney-fee-shifting provisions, and it may be possible to have one in a prenuptial agreement. Such a provision could mandate that a party who challenges the prenup is responsible for both parties' attorney's fees, or even that the "losing" party must pay attorney's fees in the event of divorce.

However, there is little agreement among state courts as to whether these provisions are legally enforceable.

Egregious Behavior or Extreme Hardship

Some states give judges discretion to award "reasonable" attorney's fees in divorce cases. In considering such an award, judges tend to rely on the following factors:

  • The ability of each party to pay attorney's fees;
  • The relative financial needs of each party;
  • A disparity in funds between parties; and
  • Any intentional misconduct by either party.

In most cases, a judge is more likely to award one party attorney's fees as a way to mitigate an extreme disparity in finances between ex-spouses or even as a way to punish the egregious behavior of one party.

Still confused? Your divorce attorney can walk you through your chances of receiving attorney's fees in your own divorce case.

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