If one spouse insists on divorce, shouldn’t he/she pay all legal fees?

Not necessarily “wrong,” but rather unlikely (not impossible, but unlikely, but read on to see what exceptions may apply).

It may be reasonable of you to argue to the court that since you did not want a divorce (and presumably because you did nothing to justify your spouse filing for divorce) it would be unfair for you to be ordered to pay for the attorney’s fees and court costs your spouse incurs in seeking a divorce from you. you have a good chance of convincing the court that your spouse should bear his/her own attorneys fees and court costs incurred in his/her efforts to obtain a divorce from you.

But would it be reasonable for you to ask the court that your spouse pay yourattorney’s fees and court costs that you incurred in the divorce case? that’s a more difficult question to answer because there are so many variables that can exist.

Here are a couple of examples I can think of where a court might award you your reasonable attorney’s fees and court costs against your spouse in a divorce action, regardless of whether you filed for divorce or whether your spouse did:

(the statutes that I cite are out of the Utah Code because I practice divorce law in the state of Utah)

Utah Code § 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.

(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.

So Utah Code § 30-3-3 provides that your spouse could be ordered to pay your attorney’s fees and other litigation costs, if you could show that you need your spouse to do so to enable you to defend yourself and/or prosecute your counter suit against your spouse in the divorce action.

The criteria the court considers when determining whether you are worthy of having your spouse pay your attorney fees and other litigation costs are primarily – arguably exclusively – financial in nature.

Otherwise stated, if your spouse makes substantially more money than you do, and you don’t make enough money to support yourself and have enough left over to pay for an attorney and other litigation costs, the court may order your spouse to give you money prospectively to cover your costs as the case unfolds, and the court can award you a judgment for the amount of attorney’s fees you have incurred at the end of the case.

Another basis for obtaining a judgment against your spouse for your attorneys fees (just your attorneys fees) is found in Utah Code §78B-5–825.

  • § 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).

So if your spouse engaged in bad faith and vexatious litigation tactics, which cause you to incur unreasonably high attorney’s fees, the court could award you attorney’s fees under §78B-5–825.

Finally, a divorce court has broad equitable powers that it can invoke to award attorneys fees and other sanctions against your spouse, if the Judge finds that you have a need for your spouse to pay these expenses and/or because your spouse’s inequitable conduct justifies an award of attorney’s fees and litigation costs to you.

Utah Family Law, LC | | 801-466-9277

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