How do I get my attorney's fees paid for in a Minnesota Divorce?
Attorney’s Fees Awards in a Minnesota Divorce
In general, each party to a lawsuit is responsible for paying his or her own attorney’s fees and court costs incurred during the case. However, there are two main exceptions to this rule. First, if the parties to the lawsuit have previously entered into a contract or stipulation that provides for a different method of allocating future attorney’s fees (usually in the event one party acts in bad faith), that contractual provision may apply and one party may be required to pay the other party’s attorney’s fees and court costs. Second, a party may get his or her attorney’s fees paid for by the other party if a Minnesota Statute expressly authorizes it.
With these basic principles in mind, there are a number of ways a party may get reimbursed for his or her attorney’s fees and court costs in a Minnesota Divorce, custody case, or post-decree matter.
Prior Stipulation or Contract
In Minnesota, a divorce is not finalized until a Decree is signed by a Judge or judicial officer and Judgment is entered by the Court. In many instances, the parties will enter into a stipulated divorce decree setting forth numerous agreements and court orders that the parties must follow in the future. In order for a court to make a fair distribution of the parties’ assets at the time of the divorce, courts expect the parties to disclose all of their assets and income information to the other party. When entering into a stipulated decree, the parties will oftentimes acknowledge in writing that such a disclosure has occurred.
However, not every Minnesotan going through a divorce is truthful regarding his or her financial circumstances. For this reason, many divorce decrees specify that if it is determined that there are assets or income which have not been disclosed by one party, the court may later divide those assets, and the party failing to disclose such information will be required to pay the other party’s costs and attorney’s fees incurred in having to go back to court to seek such a division. This is an example of a contractual agreement or stipulation authorizing an award of attorney’s fees.
Statutory Attorney’s Fees
As stated above, a Minnesota state statute may also authorize an award of attorney’s fees in certain specific situations. The Minnesota divorce statutes (which also applies in custody and other family law matters) authorizes two types of attorney’s fees awards—need-based and conduct-based.
Need-based Attorney’s Fees
Minnesota spouses have the right to get a divorce if there has been an irretrievable breakdown of the marital relationship. Likewise, unmarried Minnesota fathers have the right to petition the court for an order establishing custody and parenting time of a child. Unfortunately, many family law cases can be expensive, and exercising these rights (or defending against them) may not be financially feasible. The Minnesota State Legislature recognized this, and created the need-based attorney’s fees statute.
In Minnesota divorce and custody matters, the court will award attorney’s fees and court costs in an amount necessary to enable a party to carry on or contest the proceeding, provided certain requirements are met. First, the fees must be necessary for the good faith assertion of the party’s rights and will not contribute unnecessarily to the length and expense of the proceeding. This means that a party who simply wants to assert their rights and get a divorce in good faith, but does not have the financial means to do so, may be eligible to have the other party pay their attorney’s fees and costs. However, if the party to whom attorney’s fees are awarded is not acting in good faith and their sole objective is to delay the proceedings and make the other party run out of money, an award of need-based attorney’s fees will be unlikely.
Second, an award of need-based attorney’s fees and costs may be awarded if the party from whom the fees and costs are sought has the means to pay them and the party to whom the fees and costs are awarded does not have the means to pay them. For instance, if Party A is the CEO of a large corporation earning $500,000 per year, and Party B is unemployed, it is likely that Party A has the financial means to pay Party B’s attorney’s fees who, in turn, does not have the means to pay his or her own attorney’s fees. Similarly, in the same scenario, it is unlikely that a court would ever order Party B to pay Party A’s need-based attorney’s fees, since Party A has the means to pay his or her own attorney’s fees and Party B likely does not have the means to pay them. Lastly, if both parties are unemployed, it is unlikely that either party has the financial resources to pay the other party’s attorney’s fees, and an award of need-based attorney’s fees will likely not be assessed against either party.
Conduct-based Attorney’s Fees
Conduct-based attorney’s fees, as its name would suggest, are typically awarded when one has conducted him or herself wrongly. Specifically, the court may award additional fees and costs against a party if that party has unreasonably contributed to the length or expense of the proceeding. There are certain scenarios when a court is more likely to award conduct-based attorney’s fees to a party. For instance, if a party refuses to attend mediation to resolve a dispute, despite a prior court order requiring it, the court may find that that party’s conduct contributed to the length or expense of the proceeding (i.e. having to go back to court). If a party repeatedly files motions into the case that are not supported by facts or law, the court may also find that that party has contributed to the length or expense of the proceeding (i.e. no legal basis to bring the matter before a judge). Lastly, if one party repeatedly withholds court-ordered parenting time from the other party, requiring the other party to file a motion or ask the judge for help, the court may order the wrongdoer to pay the other party’s attorney’s fees.
It is important to note that the statute only authorizes attorney’s fee when a party unreasonably contributes to the length or expense of the proceeding. This means that if a party files a motion to change or modify the prior custody order due to reasonably believing that the child is in danger in the other party’s care—which may contribute to the length and expense of the proceeding—it is unlikely that a court would find such an action to be unreasonable, as a parent has a right to file a custody modification motion if they believe their child is in harms way.
Can I Pay for my Attorney’s Fees out of Marital Assets?
In Minnesota, marital property means property, including income, that was acquired by the parties during the marriage. While neither spouse to a divorce proceeding may dispose of any assets while the divorce case is pending, they may in fact do so for the sole purpose of retaining legal counsel to carry on or contest the proceeding. This means that if you share a joint bank account with your spouse that was added to during the marriage, you are well-within your legal right to access those funds to pay an experienced divorce attorney to represent you during the case.
Conclusion
While the general rule is that each party pay for his or her own attorney’s fees and court costs in civil cases, there are many exceptions to this general rule. You should never hesitate to retain the services of an experienced divorce or family law attorney simply because you cannot retain one. And you should not be forced to be dragged through expensive and enduring litigation simply because the other party is acting in bad faith or wants to drain your bank account.
The attorneys at RAM Law PLLC have been successful in obtaining attorney’s fees for their clients and reducing those attorney’s fees awards to civil judgments. If you are seeking attorney’s fees from your spouse or other party, contact the experienced family law attorneys at RAM Law PLLC to schedule your free consultation.