Who pays for your divorce or paternity matter?
Absent a fee shifting statute, each party to a lawsuit in Arizona is responsible for paying its own attorneys’ fees. In a divorce or paternity case, there are two primary fee shifting statutes that allow a court to award attorneys’ fees:
A.R.S. § 25-324(A) provides:
The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter or chapter 4, article 1 of this title. On request of a party or another court of competent jurisdiction, the court shall make specific findings concerning the portions of any award of fees and expenses that are based on consideration of financial resources and that are based on consideration of reasonableness of positions. The court may make these findings before, during or after the issuance of a fee award.
A.R.S. § 25-403.08 provides:
1. In a proceeding regarding sole or joint legal decision-making or parenting time, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing.
2. If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.
If the parties to a divorce have comparable financial resources and take reasonable positions throughout the divorce proceedings, it is likely that neither party will be entitled to recover their attorneys’ fees. However, in cases in which one party has significantly greater earnings than the other party, it is likely that the party with the greater earnings will be responsible for some portion of the other party’s attorneys’ fees. While A.R.S. § 25-324 is often used as a basis for an award of attorneys’ fees at the conclusion of a case, A.R.S. § 25-403.08 specifically provides for an interim award of attorneys’ “fees, expenses and costs to allow adequate preparation.”
What this means to the parties to a heavily litigated divorce is that the party with greater earning capacity has potentially significant financial exposure in having to pay their spouses’ attorneys’ fees either during the divorce proceedings or at the conclusion of the case. On the other hand, a party with reduced earning capacity may be able to obtain funds from their spouse to litigate the divorce. Thus, just because you do not have significant earning capacity or funds available to level the playing field with an attorney, you may be able to get your spouse to pay a significant portion of your attorneys fees to proceed with your divorce.
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The information and views contained in this posting are not legal advice, nor do they form an attorney-client relationship.