Some thoughts on divorce lawyer legal fees
Divorce Lawyer Legal Fees: Who Pays? Inevitably Both Sides Want the Other to Pay. In Every Case, Divorce Legal Fees an Issue. Family Court Judges Have Discretion Allocating Fees. Factors Including Need, Financial Ability to Pay, and Good Faith in Instituting or Defending Action. Family Court Results Difficult to Predict, Use Good Judgment. Net Dollar Analysis – Discuss Likelihood of Success in Cost of Going Forward.
In every case, divorce lawyer legal fees are an issue.
Obviously, someone must pay for the divorce lawyer legal fees. Inevitably both sides want the other side to pay.
Infidelity – who pays the divorce lawyer legal fees when one spouse has an affair?
Surprisingly, marital fault is not considered when allocating lawyer fees. Most cases with accusations of marital infidelity are emotionally charged. The parties may want to fight hard on every issue. Unfortunately family law courts are ill designed to allocate marital fault. Family law courts follow statutes case law. By and large, marital fault is irrelevant.
So, there is no way to get my spouse to pay my divorce lawyer legal fees?
Not so fast. In fact, the family court judges have wide latitude in allocating legal fees among the parties. Fortunately, case law, statutes and court rules offer the family court judges wide discretion. Rule 5:3–5(c)3 provides guidance to the court on allocating divorce legal fees. Similarly, often cited cases like Argila v. Argila buttresses claims over divorce lawyer legal fees.
Although Argila uses the language of the “old school” when husband’s exclusively paid wive’s the logic of the analysis still holds true:
Under our practice, the award of counsel fees and costs in a matrimonial action rests in the discretion of the court. In deciding whether a wife is entitled to counsel fees and costs, our courts focus on several factors, including the wife’s need, the husband’s financial ability to pay and the wife’s good faith in instituting or defending the action. 3 Nelson, Divorce and Annulment (2d ed. 1945), at pp. 215-220. Cf. Capodanno v. Capodanno, 58 N.J. 113 [275 A.2d 441] (1971); Khalaf v. Khalaf, 58 N.J. 63 [275 A.2d 132] (1971). Those factors being met, it is the policy of our law that counsel fees and costs in matrimonial actions are properly the obligation of the husband and he should be compelled to furnish them to the wife. In this respect, counsel fees and costs are not unlike other categories of “necessaries,” which the law compels the husband, the usual repository of family finances, to furnish to the wife. 3 Nelson, supra, at pp. 216, 231-32. See generally Annot., Husband & Wife — Legal Services — Divorce, 25 A.L.R. 354 (1923); 41 C.J.S. Husband and Wife § 60, p. 526 (1944).
Obviously, everyone wants someone else to pay the divorce lawyer legal fees.
Clearly, there must be a source of funds. Oftentimes, family court judges tell me:
“Mr. Horn, I will grant your request for legal fees.However, you must point me to a pot of money or stream of income.”
In other words, the Family Court judge cannot give you what the other side Does Not.
Is fighting over legal fees in your best interests?
Assuredly, you would like the other side to pay your divorce lawyer legal fees.
However, you do not want to incur thousands of dollars in legal fees waging that battle. The exception – – except, in the case where your fees are hundreds of thousands of dollars.
Use net dollar analysis.
Because family court results are difficult to accurately predict, use good judgment. Start with your divorce lawyer and discuss the likelihood of success in the cost of going forward.