Figuring out how to pay for the costs of getting a divorce is an overarching issue for many spouses. If the parties are able to settle their issues privately and without court intervention, controlling the costs of dissolving the marriage is usually more manageable and less likely to have a long-term negative impact. If the divorce case is fought out in the courts, however, costs are likely to increase significantly, and for spouses with limited assets, this could be enough to delay asking for a divorce, accepting a settlement for less than either really wants, or ruling out divorce as an option.
In family law cases in particular, the law and public policy want to give all parties equal access to the courts, and avoid putting the stay-at-home parent or spouse with a lower paying job at a great disadvantage in the litigation process. To ensure parties have access to the courts, the law permits attorney fees to be shifted to the side better able to bear the cost, which also often has the added benefit of reducing the incentive to engage in protracted litigation. Certainly, the annual income of both parties is a critical factor in deciding whether attorney fees should be awarded to the other spouse, as well as for determining the child support and a spousal maintenance award. Spouses with large disparities in income are more likely to encounter closer scrutiny of support and cost allocations, with the recent divorce of actor Casey Affleck serving as an example. A discussion of when courts are more likely to award attorney fees, and situations in which the court may exercise its discretion to deny such requests, will follow below.
Factors Courts Assess
Generally, parties in court cases are expected to pay their own legal expenses; so, to convince a court to shift this burden to the other spouse requires significant justification. Indiana law specifically authorizes courts to award reasonable attorney fees for maintaining or defending a divorce case, as well as for legal services provided before and after the divorce proceeding. To determine if attorney fees should be imposed on the other spouse, the court examines the following factors:
- The resources of each spouse;
- The employability of each spouse; and
- The economic condition of each spouse.
Furthermore, the ability of a party to pay attorney fees does not automatically mean that he or she is not entitled to an award, and any misconduct by a spouse, such as the dissipation of assets, that led to additional litigation costs could justify shifting fees, especially if the misconduct was in bad faith.
When Judges May Deny
In addition to court-ordered awards for attorney fees, the spouses themselves can form their own agreement on who pays. This type of agreement is most commonly seen in post-judgment divorce and paternity actions over child custody and support issues, with the loser deemed responsible for reasonable fees. However, a court may exercise its discretion and refuse to order the payment of the prevailing party’s fees if there are concerns about the impact such a decision would have on the losing parent’s willingness to pursue legal action due to financial worries. Specifically, the court does not want a parent to avoid asking for more parenting time or modifications to the child support obligation because losing would mean significant legal bills, as this situation would go against the public policy of giving priority to the best interests of child with respect to parenting time and child support. Thus, even if the parents previously agreed to shift attorney fees in advance, an award is unlikely if the basis for the case is child-related.
Contact an Indiana Divorce Attorney
Filing for divorce does bring some unavoidable costs, but an experienced family law attorney can help explore lower-cost resolution options, as well as whether the other side may be ordered to pay fees. Christopher L. Arrington, P.A. customize their approach to the facts of each case to get the best possible result. Contact the Danville law firm today to schedule an appointment.