A common question I often get asked is “can I get my ex to pay for my attorney fees?” Sometimes you can get your ex, or soon to be ex-spouse, to pay for attorney fees you incur during the divorce.
Section 14-10-119, C.R.S. provides the primary way for an individual to receive attorney fees from the other party. It states: “The court, from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party maintaining or defending any proceeding under this article attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry judgment.” The Colorado Appellate Court interpreted this statute to mean that “the purpose of an award of attorney fees is to apportion equitably the costs of dissolution, based on the current resources of the parties.” In re Renier, 854 P.2d 1382 (Colo. App. 1993).
Essentially, the judge can in the beginning, middle, and/or at the end of the divorce process can award attorney fees from one party to the other, on the basis that there is a “disparity” in the parties’ income. Furthermore, the Court does not consider fault when determining whether or not to award attorney fees. So even if your spouse cheated on you, or did something else to cause the divorce, you may still pay attorney fees to the other party if you earn more than your spouse, and the Court believes it is appropriate to “apportion equitably the costs of dissolution.”
Another matter to consider is how much discretion this statute gives a Judge when deciding whether or not to award fees. For example, judges interpret and apply the language “time to time” and “reasonable amount” very differently. Some judges (and even entire jurisdictions) are notorious for awarding (or not awarding) attorney fees. It may be helpful to speak with an attorney to determine the likelihood of receiving an attorney award in your particular case. Furthermore, it is common for attorney fees, if awarded, to be awarded at the very end of the case during the permanent orders hearing. It can sometimes be difficult for a client to sustain his or her fees until the end of the case.
There are other circumstances under which the Court does award attorney fees, but none of them are related to any bad behavior that occurred in the marriage itself. Attorney fees can be awarded if one party is not providing discovery and financial documents as required in the divorce. Attorney fees can be awarded if contempt is found against one party for violating a court order. And, in very limited circumstances, attorney fees can be awarded if one party files a frivolous motion or takes a frivolous action in a case.
Given the law, if you are earning less than your spouse, it may be appropriate to request an award of attorney fees in your case. And if you are earning more than your spouse, it is important to consider that you may have to pay his or her attorney fees in the divorce proceedings. Either way, it is good to be financially, mentally, and emotionally for an award of attorney fees and may be helpful to seek legal advice on this issue.
