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Attorneys' Fee Shifting in Divorce Cases

In some cases of divorce the court will order one spouse to pay the attorneys' fees of the other. This is most likely where there is the large disparity between the income levels of the parties, or if one of the parties unnecessarily escalates the attorneys' fees in the case by requiring litigation of issues and refusing to entertain settlement offers. It is also possible for the parties to reach an agreement on the payment of attorneys' fees as part of a marital settlement agreement.

Factors considered in whether the court will order one spouse to pay the attorneys' fees of the other, and the amount to be paid, include but are not limited to:

  • The need of the parties for legal services and their relative economic positions;
  • The complexity of the legal issues address by the lawyers in the case;
  • The degree to which either party unnecessarily prolonged litigation of certain issues;
  • The time spent on the case by the attorneys;
  • Testimony of expert witnesses can be offered regarding the reasonableness of the fees sought;
  • Reliance on the judge's own experience presiding over cases with similar issues; and
  • The level of success achieved by the lawyer.

Such an award is not dischargeable in bankruptcy.

Fee shifting awards are available in the following kinds of actions:

  • Divorce;
  • Separate support (e.g., when you remain married but live separately);
  • Annulment (with some exceptions);
  • Abuse prevention;
  • Contempt proceedings for failure to pay alimony, spousal support, or child support;
  • Child custody proceedings to the extent they are related to actions for divorce, separate support, annulment, or abuse actions;
  • Sanctions (e.g., for undermining the legal process, etc.)

It should be noted that with the exception of abuse prevention and sanctions, fee shifting awards are not available in domestic relations actions for matters not involving the dissolution of a marriage, such as in child support or custody matters for children born out of wedlock.

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  • CA State Bar Association
  • MA Bar Association
  • Essex County Bar Association
  • Salem Bar Association
  • Women's Bar Association
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