In most divorce cases, each party pays their own attorney’s fees, or both parties pay the fees out of joint funds. If one party is paying an attorney without the other party’s knowledge, but does not have access to sufficient funds, they may borrow funds from a friend or family member (or obtain a gift from that person). But as for the prospect of one party actually having to pay the other party’s fees out of their own pocket: this only happens in two ways, by statute. One is a “need-based” award of fees from the court. The other is a “conduct-based” award of fees.
A “need-based” award has three required findings that the court must make:
- The fees were incurred in good faith.
- The requesting spouse lacks the means to pay their fees.
- The paying spouse has the means to pay the requesting spouse’s fees.
A “conduct-based” award only requires the court to rule that a party has engaged in misconduct that unnecessarily contributes to the length and expense of the proceedings.
In many cases, one party believes the other party is being unreasonable in negotiations, or even in refusing to negotiate. That situation may not be sufficient for the court to find misconduct. Everyone is entitled to their “day in court.” More typically, a “conduct-based” award of attorney’s fees will be based on a failure to disclose assets (or to do so in a timely manner), or to miss important court-ordered deadlines.