A question divorce attorneys are often asked is whether their former spouse will have to pay for their legal fees. The reasons why a client may ask this range from the client being of a lower income level than the former spouse and simply needing assistance paying their legal fees, to a contentious divorce case where there are allegations of misconduct against the former spouse that lead to the legal fees in the first place. In both instances the award of legal fees are possible.
DIFFERENT FINANCIAL POSITIONS OF THE FORMER SPOUSES
In some instances the court may require one former spouse to pay the legal fees for the other spouse. The payment of the opposing party’s legal fees may be awarded if one spouse has a low income and the other spouse has a high income. As you may imagine, this scenario is common when one spouse worked outside the home and the other took care of the home or children during the marriage. In those cases, the lower-earning spouse may be unable to pay his or her legal fees.
DETERMINING THE AMOUNT OF LEGAL FEES AWARDED
In determining the amount such an award of attorney fees, New Jersey Family Court Rule 5:3-5(c) directs the judge to consider several factors, including the financial circumstances of the parties, each party’s ability to pay their own legal fees or the fees of the other spouse, the amount of fees each party has incurred, and any fees previously awarded to the parties. The rule also directs the court to take into consideration any other factor that relates to the fairness of such an award. Additionally, the award must be for legal fees that are of a reasonable amount given the amount of work put in by the attorney.
BAD FAITH AS A BASIS FOR THE AWARD OF LEGAL FEES
Bad faith is another basis that can lead to the award of legal fees in a divorce case. Bad faith is conduct that unnecessarily leads to a prolonged legal process. What exactly constitutes bad faith is not specifically defined. Instead, it is left up to the judge to determine if it exists in a particular situation. Bad faith can be explained as the conscious wrongdoing of a party to the litigation. It is more than just bad judgment; the conduct of the party acting in bad faith is being done on purpose. In divorce cases, common examples of acting in bad faith include: not paying ordered child support or alimony, filing baseless motions to prolong the litigation, and liquidating marital assets before the divorce. New Jersey family courts take bad faith conduct seriously, and will use the award of legal fees to the opposing party in order to punish a litigant acting in bad faith.
If you are facing a divorce and need legal advice on whether you are entitled to have your former spouse pay for your legal expenses, call the Law Offices of Peter Van Aulen for a free consultation.
New Jersey Family Court Rule 5:3-5(c)