Can The Court Make My Ex Pay My Attorney's Fees?
Can The Court Make My Ex Pay My Attorney's Fees?
One of the most common questions our lawyers are asked in Minnesota custody or divorce cases is whether the other side may be required to pay for our client’s attorney’s fees. The answer to this question is a resounding “it depends.” In the vast majority of cases, each party is responsible for paying for their own attorney’s fees and court costs. However, Minnesota courts can make one party pay the other party in two family court scenarios.
Need-Based Attorney’s Fees
What are need-based attorney’s fees? Simply put, need-based attorney’s fees are fees awarded because one party cannot afford an attorney while the other party can afford not only their own costs, but also the costs of the needy party. In Minnesota divorce actions, a court can force one spouse to pay for the other spouse’s attorney’s fees where three factors are met.
That 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.
This basically means that one party needs the fees to hire an attorney, and that without an attorney that they would be unable to fully assert their rights. This is usually the easiest element to meet, as it is almost always important to have an attorney in a contested divorce or other family law case.
That the party from whom fees, costs, and disbursements are sought has the means to pay them.
This second element analyzes whether the more wealthy spouse has the means to pay for the other party’s fees. This can be more difficult to establish, as most parties to a divorce case do not have expendable resources to provide for not only their own costs, but also those of the other side.
That the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
This element can also be difficult, as most parties to a divorce have some resources and thus can afford some legal fees. This is not always the case though, and there are certainly many situations where this element is met, and a spouse truly cannot afford attorney’s fees and costs.
Practically speaking, it is often difficult to establish that these factors are met. Usually parties with an attorney already retained will have greater success seeking such fees, as they are able to put together a more legally sound argument as to why such fees should legally be awarded. Whether such a claim is viable should be carefully discussed with an attorney, as improperly bringing such a claim may be time consuming and expensive, by itself. More importantly, it may also contribute to the length and expense of the proceeding, which is relevant in terms of the second means to obtain attorney’s fees and costs.
Conduct-Based Attorney’s Fees
What are conduct-based attorney’s fees? In short, these fees are fees that are awarded because of a party’s bad action in a case. Minnesota Statutes Section 518.14 states that where a party “unreasonably contributes to the length or expense of the proceeding,” the Court may make them pay for the other side’s fees. While this is a broad definition, it usually references situations where one party has refused to comply with court orders, or has intentionally delayed a proceeding in order to cause the other side more cost. Courts are often reluctant to grant such conduct-based attorney’s fees absent obvious nefarious action by a party. Again, it is important to discuss with an experienced family law attorney whether bringing a request for conduct-based fees is appropriate and viable in your case.
If you are involved in a Minnesota divorce or child custody case, contact RAM Law PLLC’s experienced team of family law attorneys by phone at 651-468-2103 or through our online submission form to set up your free consultation.