Short answer: In Minnesota, each spouse usually pays their own attorney fees, often from marital funds. A court can order one spouse to pay toward the other’s fees in two situations: need-based fees, when one spouse can’t afford a lawyer and the other can, and conduct-based fees, when one spouse unreasonably drives up the cost (Minn. Stat. § 518.14).
Who pays attorney fees in a divorce? In Minnesota, each spouse usually pays their own attorney fees. That’s the default, and nearly every Minnesota divorce starts that way.
Most often, spouses pay attorney fees from marital income and assets, such as bank, investment, or retirement accounts. Some people borrow from family or friends. Others take out a loan or use a credit card. However, Minnesota law allows one spouse to ask the court to order the other to pay attorney fees in two situations (Minn. Stat. § 518.14).
“Need-Based” Attorney Fees
Sometimes one spouse can’t access the marital accounts, or there are few liquid assets. Or one spouse may earn much more than the other. In these cases, a spouse can ask for need-based attorney fees. Generally, that spouse must show three things. First, the fees are necessary to pursue the case in good faith. Second, the other spouse can pay them. And third, the spouse asking can’t. If the other spouse won’t agree, you’ll need a court order.
“Conduct-Based” Attorney Fees
What if one spouse behaves unreasonably and drives up the time and cost of the case? Then the other spouse can ask for attorney fees to cover that added expense. Again, if the other spouse won’t agree, you’ll need a court order.
Practical Attorney Fee Issues
Even if your spouse might pay your fees, you’re still responsible for paying your attorney. After all, your attorney works for you, and that may include asking for a fee award. Either way, you owe your attorney for their work, whether or not the court awards fees later.
If there are significant marital assets, you may be able to use those funds to pay fees. Also, one spouse may use more marital money than the other to pay their attorney before the property is divided. In that case, it may be fair to adjust the property division to make up the difference.
In other words, if you each pay your own fees and one of you took more out of marital property to do it, the other has an argument to be reimbursed for their share of the difference.
Keep in mind that asking for attorney fees can stir up strong feelings. Many people hate the idea of paying their soon-to-be ex-spouse’s attorney. As a result, a fee request can add fuel to the fire, so weigh it carefully if you’re hoping for a low-conflict divorce.
Also, attorney fees don’t include court costs, such as filing fees. Still, you can ask to be repaid for those too. See the Minnesota Judicial Branch’s court fees page for current costs.
In short, who pays attorney fees in a divorce depends on your circumstances. For more about hiring an attorney, see 8 Reasons To Hire A Family Law Attorney.
Have another divorce or family law question? See our list of topics or the FAQ page.
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