Will My Spouse Have to Pay My Attorney Fees in the Divorce?

One of the first questions I get in every consult (especially from a home-making spouse) is will my spouse have to pay my attorney fees in the divorce? Unlike most bloggers, I don’t like to make my readers wait until the end of the post to get the quick answer . . . and that answer is . . .

PROBABLY NOT… BUT DON’T WORRY JUST YET.

First, a court can only award attorney fees where authorized by statute or contract. Fortunately, the law expressly authorizes a court to award attorney fees in a divorce. Section 30-3-3, Utah Code Ann. provides the court with authority to require the spouse to pay attorney fees so that you may prosecute or defend the action.

The problem is that in most divorce cases, there simply is not enough money to go around. I find more and more of my cases are about dividing up the debt than they are about dividing up the assets. If you can point to a specific asset (such as a bank account) the court is usually more inclined to authorize funds be used in that account to pay your attorney fees.

In cases where one spouse has controlled all of the finances and made all of the money, it is more likely you will be able to obtain an award of attorney fees.

Additionally, in enforcement matters (to require a party to comply with an order) the Court can and, with some degree of frequency, will award attorney fees to the prevailing party.

Here is why you shouldn’t worry just yet. Dealing with a divorce is like playing chess. There are a lot of moving parts. You cannot just worry about one piece on the board. You have to consider all of them at the same time. Just because you are not awarded attorney fees does not mean you will have no way of hiring an attorney.

The biggest example is alimony. The court may deny your request for attorney fees but award you enough alimony that you can at least set up a payment plan with your attorney. Don’t be discouraged just because you are worried you cannot afford a divorce lawyer. Chances are high we will be able to help you one way or another.

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