Question: How can I get a fair child custody arrangement when my ex has an attorney and I am unable to pay the initial retainer for my own attorney? I have a steady job and am paid well, but I simply don’t have money for the retainer and my ex’s father is, literally, a millionaire.
This is a good question, and a common one. Here is the answer:
(1) In any action filed under Title 30, Chapter 3, Divorce, Chapter 4, Separate Maintenance, or Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act, and in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.
(2) In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.
(3) In any action listed in Subsection (1), the court may order a party to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.
(4) Orders entered under this section prior to entry of the final order or judgment may be amended during the course of the action or in the final order or judgment.
The following principles governing an award of attorney’s fees under Utah Code § 30-3-3 is taken from the Utah Supreme Court case of Dahl v. Dahl, 345 P.3d 566 (Utah 2015):
In Utah, attorney fees are awardable only if authorized by statute or by contract.” Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988).
Section 30-3-3(1) of the Utah Code authorizes courts to award attorney fees and costs in divorce cases if doing so would “enable the other party to prosecute or defend the action.” “Such an award must be based on evidence of the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Levin v. Carlton, 2009 UT App 170, ¶ 27, 213 P.3d 884.
The party requesting an award of fees has the burden of providing such evidence. Griffith v. Griffith, 959 P.2d 1015, 1020-21 (Utah Ct.App.1998).
The decision of whether to award attorney fees pursuant to section 30-3-3 of the Utah Code rests in the sound discretion of the district court.
When determining the financial need of the requesting spouse, we “generally look to the requesting spouse’s income, including alimony received as the result of a divorce decree; the property received via the property distribution award; and his or her expenses.” Kimball v. Kimball, 217 P.3d 733, ¶ 46 (Utah Ct.App. 2009)
When evaluating the reasonableness of a request for attorney fees pursuant to section 30–3–3, courts look to a variety of factors.
Reasonable attorney[ ] fees are not measured by what an attorney actually bills, nor is the number of hours spent on the case determinative in computing fees…. A court may consider, among other factors, the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved.
Cabrera v. Cottrell, 694 P.2d 622, 624–25 (Utah 1985); see also Utah R. Prof’l Conduct R. 1.5(a) (establishing factors to be considered in determining the reasonableness of an attorney’s fees).
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