Who Pays Attorney Fees in a Divorce?

Who pays for attorney fees in a divorce?  In Minnesota, each spouse typically pays his or her own attorney’s fees.  This is effectively the default.  Almost all Minnesota divorces start with this situation.  Most typically attorney’s fees are paid via spending marital assets.  This includes bank accounts, investment accounts, or retirement accounts.  Sometimes people pay by borrowing from family or friends.  Lastly, spouses sometimes take out a loan or use a credit card.  Minnesota law however provides for two situations in which one spouse may request attorney’s fees from the other in a divorce.

“Need-Based” Attorney Fees

If one spouse either does not have access to marital accounts, there are limited liquid marital assets, and/or one spouse makes significantly more than the other, one spouse may request the award of attorney’s fees from the other spouse.  If the other spouse does not agree to this, an award of attorney’s fees requires a Court Order.

“Conduct-Based” Attorney Fees

What if one spouse is behaves inappropriately?  And doing so unduly increases the time and expense of litigation?  If so, the other spouse may seek an award of attorney’s fees for this increased expense.  Again, if the other spouse does not agree to this, an award of attorney’s fees requires a Court Order.

Practical Attorney Fee Issues

The possibility that your spouse may pay for your attorney fees does not typically alleviate your responsibility to pay your attorney.  In other words, your divorce attorney is working for you, among other things, to get an award for attorney fees.  However regardless of whether you receive those fees later, you still owe your attorney for the work he or she does.

As an alternative, if there are significant marital assets, these funds may be used. Related to this, if there is a difference between what each spouse paid his or her attorney before marital property was valued, it may be appropriate to adjust the property division for this.  In other words, if you each are paying your own fees and one of you took more out of marital property to pay your attorney, the other party has an argument to be reimbursed his or her share of the difference.

Asking for attorney’s fees can be an extremely volatile issue in a divorce.  Viscerally many people detest the idea of paying his or her soon to be ex-spouse’s attorney.  This can add more gas to the proverbial fire.  This is important to keep in mind if you are seeking a conflict-free divorce.

Lastly, attorney fees do not include Court costs. Although, a spouse can request this as well.  See MN Courts court fees page for current costs.

So, who pays attorney fees in a divorce depends on the circumstances.  For more information about hiring an attorney, click reasons to hire an attorney.

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