Did one party cause the divorce?
If one party can show that the other party clearly caused the divorce, and therefore forced the parties to hire lawyers and incur attorney’s fees, then the judge may award attorney’s fees to the ‘innocent’ party. For example, if the husband committed adultery and the wife proves that the husband committed adultery, then this may sway the judge to award attorney’s fees to the wife, since the only reason she had to hire a lawyer was due to the husband’s adultery. Note, however, that today many divorces are no-fault divorces in which neither party is the ‘reason’ for the divorce.
Has either party acted in bad faith?
If one of the parties to the divorce has been unreasonably difficult during the case then the judge is more likely to award attorney’s fees against that party. Some examples:
Husband made a settlement offer to wife. Wife never acknowledged receipt of the offer and never responded to the offer. Husband was forced to go to court and incur attorney’s fees, and the final result was roughly equivalent to husband’s initial settlement offer. The judge might award attorney’s fees to husband because his wife’s bad faith in not engaging in settlement discussions in response to a reasonable settlement offer made him incur attorney’s fees.
Prior to trial, the parties engage in discovery (an exchange of information permitted under the court’s rules). The wife complies and sends all of the information husband requested. Husband completely ignores wife’s requests and does not provide this information, forcing wife to go to court multiple times to force the husband to comply. Wife incurs attorney’s fees by having to go to court to make husband comply. The judge may award attorney’s fees to wife because she incurred these fees due to husband’s refusal to share information which the wife was entitled to obtain.
What is the financial situation of each party?
One of the things a judge is most worried about in awarding attorney’s fees is financial fairness. A judge will be unwilling to make a party pay attorney’s fees if it would cause them extreme financial hardship. Therefore, the judge will consider whether there is a large income gap between the parties, whether the party being ordered to pay attorney’s fees has the financial ability to do so, whether one of the parties will receive spousal support, how the marital property was divided in the divorce, and the amount of attorney’s fees being asked for.
Are the attorney’s fees being claimed reasonable?
This is very often one of the most heavily contested issues in high asset cases: did the lawyers charge their clients too much money? Even if a judge decides to award attorney’s fees, she may not award the full amount being asked for. For example, judge decides to make the wife pay husband’s attorney’s fees because she caused the divorce and then acted in bad faith during the lawsuit. However, judge believes husband’s attorney charged the husband too much, and therefore only makes the wife pay half of the husband’s attorney’s fees.
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