Why do Utah divorce courts so rarely award attorney’s fees to the prevailing party?
Such a great question, and one that I have to answer with every case, every client. I’m happy to answer it, even if you may not like the answer much. While a court an award you attorney’s fees in certain circumstances, and while courts do on occasion award attorney’s fees, rarely do courts award attorney’s fees or make big attorney’s fees awards.[1]
You have the law and the facts on your side. The court agrees with you. You win the argument! Now it’s time for your spouse to concede victory by paying your attorney’s fees you incurred. It’s only fair, right? I can’t blame you for feeling this way, but that’s just not how the courts usually operate. Why?
Number 1 answer on the board:
Because courts are reluctant to burden either party with a big judgment if and when both husband and wife are in dire financial straits. This is why, if a court determines that sticking your spouse with an attorney’s fee award will seriously hinder or even cripple him/her financially and make it difficult to impossible to meet his/her basic living expenses going forward, a divorce court will often order that each party pay his/her own respective attorney’s fees.
Number 2 answer on the board:
I phrase it as “nobody likes a sore winner.” I get the distinct impression that many judges and commissioners don’t want to add insult to injury by ruling against the losing party and then rubbing his/her nose in the loss by ordering him/her to pay the winning party’s attorney’s fees award on top of that.
Don’t get greedy
So keep these two concerns in mind whenever you contemplate asking your lawyer to file a motion for something AND including a request for an award of attorney’s fees with it. Because of these considerations your lawyer may be happy to file the motion seeking the relief you desire, but try to talk you out of requesting attorney’s fees or requesting a high attorney’s fee award amount.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] See Utah Code Sections:
30-3-3. Award of costs, attorney and witness fees — Temporary alimony.
(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.
78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.
(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).
(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:
(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or
(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).