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Divorce proceedings can span months and even years. Complicated cases and even seemingly simple cases may cost considerable amounts of money to pay the legal fees related to the proceedings. Thus, a common question in a divorce proceeding is how does one pay their legal fees.
Use of Assets It is generally acceptable for parties to liquidate marital assets in order to pay their legal fees. The use of assets must be disclosed as part of the divorce proceedings and may generally be considered an advance against any future property or financial settlements as part of the divorce. However, you must consult with your attorney on the proper method to do this so you do not violate the Summons which was served on you. The Summons does control the handling of the assests.
Awards of Legal Fees
In some cases liquid assets do not exist. In other cases one party has complete control of the assets and the other party does not have access to them, thus making it difficult or impossible to pay legal fee retainers and/or legal fees. In such cases a party may seek an award of legal fees from the other party.
At any point in a dissolution, a Court may also require one party to pay all or a portion of the other party's legal fees. The Court can award attorney's fees in one of two ways:
Need Based Awards of Legal Fees.
Need based legal fees may be awarded in an amount necessary to enable a party to carry on or contest the proceeding, provided that the Court finds:
- 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;
- The party from whom fees, costs, and disbursements are sought has the means to pay them; and
- The party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
Fault Based Awards of Legal Fees.
Fault based fees may be awarded if the Court finds that one party has contributed unreasonably to the length and delay of the legal proceedings and thus increased the fees, costs, and disbursements related to the proceedings. Some examples of delays where fees are awarded may include:
- Failure of one party to provide complete and necessary discovery responses;
- Filing of repeated or frivolous motions;
- Failure of a party to appear in court;
- Failure of a party to file necessary and required court documents;
- Acts by a party that create additional legal costs (e.g. hiding, selling or dissipating assets, damaging property, incurring unnecessary debt in the other party's name, harassment of a party, abuse).
PLEASE NOTE: Awarding of fees are very fact and case specific. It is unknown what a court may or may not do.
** The above information is meant to be informative only. Please consult with an attorney.
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