New York: In New York, where I practice law, there is a legal presumption that the legal fees of the non-monied spouse are to be paid by the monied spouse. A presumption, however, is not an automatic right to fees or a guarantee they will be paid. The non monied spouse has to prove that the other spouse is the monied spouse and this may take and often does take proving that the income as represented on their tax return is not their only source of income. For this purpose, separate property (property they had before the marriage), family gifts and support and spending can all be used to show a higher income and/or availability of resources.
Seeking fees often requires making a motion to the Court which of course incurs even more fees. Most lawyers will not accept a retainer unless they are paid which requires the non monied spouse to borrow money in order to pay an attorney to seek fees from the other party. These fees are often called “interim” fees to enable the non monied spouse to present her case against the monied spouse. The phrase often used is to “level the playing field”.
New Jersey: New Jersey’s Alimony Reform Law states that the courts are allowed to order one spouse to pay for the other spouse’s legal service fees “when the respective circumstances of the parties make the award reasonable and just.” Circumstances include if you were a stay at home parent, or your access to joint bank accounts was cut off by your spouse when the divorce was announced, or you were financially abused throughout the marriage. The court will consider the financial status of both parties, the amount of fees being requested, the reasonableness of your request to be compensated, your ability to pay independently and any prior fee awards.
California: If you can’t afford a lawyer but your spouse can, you can ask the court to order them to pay for you to hire an attorney. This can be ordered when one spouse has more money than the other. Your income, needs, if one of you has greater access to money, and if your spouse can pay both lawyer’s fees are all factors to be considered. You can ask a judge for fees to get the case started and more money later on.
Wyoming: The judge might order one party to pay the other party’s attorney fees.
Florida: In Florida each party is to pay their own fees, but a judge can order one party to pay the fees of the other party. The judge will consider under Florida Statute 61.16, which lists several factors when determining whether to award fees: financial disparity, need vs ability to pay, litigation conduct, bad faith, complexity of the case, access to funds.
Tennessee: Tennessee follows the American rule which requires one party to a lawsuit to pay their own fees. Tennessee statutory law vests trial courts with the authority to award one party his or her attorney fees in the context of a divorce proceeding.
Massachusetts: Massachusetts follows the American rule, however, judges have broad discretion to order one spouse to pay the other spouse’s legal fees to ensure fairness and an undue financial burden on one party pursuant to Mass. Gen. Laws ch. 208, Section 38. A separate statute allows the court to order interim fees although mist judges do not like to do so.
Texas: In Texas, each party is expected to pay their own fees however a judge can order fees to ensure fairness and equal access to representation. Financial disparity is the primary reason a judge will order fees in a divorce.
“American Rule”: The American rule means that each party is responsible for their own fees. In a marriage where each party had a different role, perhaps one brought home the money and the other stayed at home and cared for children and the household, the stay at home party is disadvantaged in a divorce as they have no independent source of funds and are reliant on their spouse to give them money to pay the expenses, food, clothing and household expenses. In a divorce, this is highly problematic.
In almost every state, the judge can order fees but each and every time, the spouse seeking fees has to ask. Usually to ask for fees, you need to retain an attorney. Retaining an attorney requires money to pay them, money the spouse seeking fees does not have. One spouse can write a check or use a credit card to retain counsel and the other spouse has to borrow money to retain a lawyer and make an application to the Court to get that money back and more.
Europe: In both France and the United Kingdom parties are each responsible for their own fees.
North America: In both Canada and Mexico both parties are expected to pay their own legal fees with some exceptions.
Conclusion: When New York’s divorce laws were amended in 2010 rather than a presumption re attorney’s fees, many attorneys wanted the legal “presumption” to be a legal mandate-that the monied spouse had to pay the legal fees of the non monied spouse. In reality, this might save total divorce fees in the long run and make the system more fair than provisions that allow the monied spouse to refuse to pay the fees of their partner and force them into court to seek fees under one of their state’s provisions to allow fees.
Divorce should be fair to both parties at the outset. It should not require a motion to the court. It should be a mandate. Failure to provide legal fees to the non monied spouse should be punishable.
New York should make that amendment. Other states should follow New York’s example.