The Anatomy of a Divorce,
Awards of Attorney Fees
The awarding of attorney fees is so uncertain that the
“free” representation should not be a factor in deciding whether to run up your
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The Anatomy of a Divorce, Part 1:
The Anatomy of a Divorce, Part 2:
The Anatomy of a Divorce, Part 3:
The Anatomy of a Divorce, Part 4:
Child Custody and Access
The Anatomy of a Divorce, Part 5:
The Anatomy of a Divorce, Part 6:
More Articles on Divorce-Related
To paraphrase Will Rogers, our justice system is the best
that money can buy. Because any type of litigation – divorce included – is
expensive, parties to a legal dispute should constantly weigh a desired outcome
against the cost of achieving it.
In an Arizona family law matter (divorce, paternity, annulment,
legal separation, post-decree issues, etc.), there are circumstances under which
the Court is permitted to order one party to pay the other party’s attorney’s
fees. However, the awarding of attorney’s fees is so uncertain that the
possibility of “free” legal representation should not be a factor in deciding
whether to run up your legal bill.
If the marriage has been one of short duration, its
dissolution is likely not to be unusually complicated; thus, attorney’s fees
should be relatively minimal and not loom as a significant issue between the
parties. In contrast, marriages of longer duration, with their accompanying
complexities involving children, support, spousal maintenance and more sizeable
assets and/or debt, can accrue significant attorney’s fees during dissolution.
In Arizona, attorney’s fees in civil litigation cannot be
awarded unless a statute specifically authorizes it; even then, whether or how
much to award is within the Court’s discretion. In family law litigation,
attorneys and judges generally look to
25-324 (other statutes can apply under appropriate circumstances). Following
is a brief breakdown of that statute:
Subsection A provides that the Court, after considering both parties’
financial resources and the reasonableness of each party’s position taken in the
case, may order one party to pay a reasonable amount to the other party for
costs and expenses. (Those two issues are discussed below.)
Subsection B provides a basis for the Court to award reasonable costs and
attorney’s fees if a petition is not filed in good faith, not grounded in fact
or based on law, or filed for an improper purpose, such as to harass the other
party or to unnecessarily delay litigation or increase its cost.
Subsection C identifies attorney’s fees, deposition costs and any other
necessarily incurred expenses as included in “costs and expenses” under
Parties’ Financial Resources
As a practical matter, proving disparate financial
resources is a difficult burden. The reason: Arizona courts tend to strive for
post-divorce financial parity between the parties (via asset distribution,
spousal maintenance or both), meaning that the parties generally emerge from
their dissolution in comparable financial conditions.
The credibility of an “unreasonable position” argument is
undermined by the reality that parties in a contested divorce almost never view
each other’s positions as reasonable. Further, just because a Court rules
against a party’s position does not mean that the Court will find that party’s
position so unreasonable as to justify an award of attorney’s fees. In fact, my
experience has been that, in denying an award, the Court often finds that both
parties have acted in bad faith.
I regularly advise clients to assume (depending on specific
circumstances) that the Court will not grant an award of
attorney’s fees and to budget accordingly.
This advice is strengthened by the fact that obtaining an award of attorney’s
fees is not the same thing as actually receiving payment; collection can be a
daunting process, particularly from a freshly scarred ex-spouse.