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May 19

Awarding Legal Fees in Divorce

As you may already know, divorce proceedings can span months and even years. Complicated cases and even seemingly simple cases may take on a life of their own increasing legal fees related to the proceedings. As a result, one of the most common questions in a divorce is how does one pay their legal fees.

Use of Assets

It is generally acceptable for parties to liquidate marital assets in order to pay their legal fees. that use of assets must be disclosed as part of the divorce proceedings and may generally be considered an advance against any future property or financial settlements as part of the divorce.

Awards of Legal Fees

In some cases, liquid assets do not exist or are inaccessible to one party making it impossible to use an asset to pay legal fee retainers or monthly legal fees. . In such cases, a party may seek an award of legal fees from the other party.

At any point in a dissolution, a Court may also require one party to pay all or a portion of the other party’s legal fees. The Court can award attorney’s fees in one of two ways: Need Based Fault based

Need Based Awards of Legal Fees.

Need based legal fees may be awarded in an amount necessary to enable a party to carry on or contest the proceeding, provided that the Court finds:

1.that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

2.that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

3.that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Fault Based Awards of Legal Fees.

Fault based fees may be awarded if the Court finds that one party has contributed unreasonably to the length and delay of the legal proceedings and thus increased the fees, costs, and disbursements related to the proceedings. Some examples of delays where fees are awarded may include:

1.a failure of one party to provide complete and necessary discovery responses;

2.filing of repeated or frivolous motions;

3.failure of a party to appear in court;

4.failure of a party to file necessary and required court documents (this varies from State to State);

5.acts by a party that create additional legal costs (eg. hiding, selling or dissipating assets, damaging property, incurring unnecessary debt in the other party’s name, harassment of a party, abuse).

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