Can I Make My Spouse Pay Attorney Fees in Divorce?
Even an uncontested divorce between spouses who agree on all family law issues can take time and money. If the parties disagree on any pertinent issue–the division of property, alimony, child support, child custody–the process can become that much more time-consuming. Other factors can add time and complexity to a divorce, such as the need to divide expensive or complicated assets like business ownership interests. The longer a divorce takes, the more fees and costs are likely to rise as well. Are you always on the hook for your own divorce costs? What if you are struggling to pay? Read on for an explanation from our seasoned New Jersey divorce lawyer concerning when and how you might get your spouse to cover your attorney fees and other divorce litigation costs.
The Default: You Pay Your Own Lawyer
In a divorce, as with any other legal proceeding, the default posture is that each party pays for their own legal fees. Depending on the type of legal claim, there may be circumstances under which the fees will be “shifted” to the other party. For example, some states allow tenants who successfully sue their landlord for legal violations to shift their legal fees to the landlord upon winning the case. Whether fee-shifting is available depends upon state law and the nature of the legal claims at issue.
Each Spouse Can Use Marital Funds
In New Jersey, each spouse can use marital funds to pay for their litigation fees and costs. The court can even order the parties to liquidate marital assets–such as stocks or a shared car–in order to permit both parties to afford litigation. Marital assets belong to both parties until they are distributed, and the parties may each draw from them to pay for the costs of divorce.
Getting Your Spouse to Pay for Your Legal Fees
In addition to utilizing marital assets, there are circumstances under which the court could order one spouse–typically the higher-earning spouse–to pay for the legal fees of the other spouse. A party can file a motion seeking to have their legal fees paid by the other party. The court can order one party to advance the costs of litigation for the other party at the outset of the litigation, or the court may order one party to reimburse the other party for costs incurred during the divorce at the matter’s conclusion.
New Jersey statute N.J.S.A. 2A: 34-23 states that the court may order one party to pay the other spouse’s costs “for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just.” To evaluate whether such an order is “reasonable and just,” the court will consider several factors, including:
- The respective financial circumstances of each party
- Each party’s capacity to pay for the litigation
- The amount of the fees requested to be covered
- The reasonableness of each spouse’s position in the litigation (i.e., whether each spouse is acting in good or bad faith)
- Any prior award of attorney fees
If one party earns significantly more income than the other party, and the lesser-earning party would be unable to pay for the litigation or would be substantially disadvantaged in the litigation, the court may order the higher-earning spouse to pay. The court is more likely to order fee-shifting if one party committed bad faith before or during the trial, such as by hiding assets, wasting assets, refusing to pay child support, or otherwise preventing the other party from having access to funds necessary to pay for the divorce.
Call a Knowledgeable New Jersey Divorce Attorney for Advice and Representation
If you’re considering divorce or you need assistance with New Jersey family law issues involving parental rights, child custody, equitable division of property, alimony/spousal support, child support, or other family law matters in New Jersey, contact the zealous and accomplished Union family law attorney John B. D’Alessandro for a consultation.