In most litigation in America each party or person involved in the litigation pays their own attorney fees. This is true regardless of whether either side wins or loses, this is referred to as the "American Rule" when it comes to handling attorney fees. This is often true in divorce cases, in many divorce cases, each party ends up paying their own attorney fees. However, this is not always true, there are many times when one spouse may be ordered to pay for some or all of the other spouse's attorney fees and in some cases, the parties' may "equalize" their attorney fees to some extent.
How Can Attorney Fees Be "Equalized" in a Divorce Case?
Most of the time when a person seeks out a divorce lawyer they are still residing together with their spouse or are otherwise financially intertwined with the other spouse. This means that most of the time the attorney's retainer will be paid from a joint account, credit card or otherwise from funds that will be considered marital by the court. It is a relatively rare case where the parties have been residing separately and managing their own accounts for so long that the court would not consider almost all accounts or funds to be marital. Then during the case the parties often have to continue to pay the attorney either with cash, credit card or some form of loan.
In almost every case, one party will spend more on attorney fees than the other party. When it comes time to negotiate the financial division of property and accounts at mediation or otherwise, one issue that should be considered is the amount of marital funds that each spouse has paid to his or her attorney for their fees. Typically, parties will be encouraged to "equalize" the amount of attorney fees that each has paid out of marital funds. For example, if one person spends $10,000 on attorney fees and another pays $20,000 on attorney fees from marital funds, then the person that paid $10,000 should be allowed to pay his or her attorney an additional $10,000 out of marital funds to "equalize" the attorney fees. If that party does not owe his or her attorney $10,000 then that party should be awarded an additional $10,000 in cash from the joint assets before it is divided between the parties.
Can I Make My Spouse Pay for My Attorney Fees In a Michigan Divorce?
In addition to equalizing attorney fees as described above, there are two situations where domestic litigation differs from the American Rule regarding attorney fees and the court will order one spouse to pay for the other spouse's fees. The first instance is where one party is not able to pay their attorney from their wages or income and the other party has the ability to pay for the same. This most often comes into play where one party has been the primary wage earner during the marriage and has a significant income and the other party has not been employed outside of the home. The idea behind this rule is to keep one party from essentially "starving out" the other party by using their superior income to pay for expensive litigation that the other party otherwise could not afford. In this scenario the court could order one spouse to pay for all of the other's attorney fees and expenses incurred in the divorce.
The second situation is where on party has caused the other party to expend money on attorney fees defending against baseless or frivolous claims. If the court decides that a motion or defense was asserted with the court purely to harass or intimidate the other spouse without any real legal merit, then the court can award to the other spouse all attorney fees and costs expended defending against or litigating that particular issue but not all of the attorney fees in the case. The reason for this is to attempt to stop one party from abusing the divorce process and using it as a means to punish the other spouse.
When Should I Consult With a Michigan Divorce Lawyer?
If you are considering filing for divorce or are concerned about your spouse filing for divorce, you should schedule a consultation as soon as possible. It is imperative to understand what the divorce might entail financially, emotionally and how much time it will take so that you can make informed decisions, Our Michigan Divorce Attorney has over twenty years of experience to assist you in better understanding what the future may hold for you if a separation or divorce is imminent. Contact us today to speak with a divorce lawyer about your situation.