family law

The Anatomy of a Divorce,
Part 7: Awards of Attorney Fees

The awarding of attorney fees is so uncertain that the possibility of
“free” representation should not be a factor in deciding whether to run up your legal bill

John McKindles

August 2012

The Anatomy of a Divorce, Part 1:
The Divorce Plan

The Anatomy of a Divorce, Part 2:
Asset Distribution

The Anatomy of a Divorce, Part 3:
Debt Allocation

The Anatomy of a Divorce, Part 4:
Child Custody and Access

The Anatomy of a Divorce, Part 5:
Child Support

The Anatomy of a Divorce, Part 6:
Spousal Maintenance

More Articles on Divorce-Related Issues

To paraphrase Will Rogers, our justice system is the best that money can buy. Because any type of litigation – divorce included – is expensive, parties to a legal dispute should constantly weigh a desired outcome against the cost of achieving it.

In an Arizona family law matter (divorce, paternity, annulment, legal separation, post-decree issues, etc.), there are circumstances under which the Court is permitted to order one party to pay the other party’s attorney’s fees. However, the awarding of attorney’s fees is so uncertain that the possibility of “free” legal representation should not be a factor in deciding whether to run up your legal bill.

If the marriage has been one of short duration, its dissolution is likely not to be unusually complicated; thus, attorney’s fees should be relatively minimal and not loom as a significant issue between the parties. In contrast, marriages of longer duration, with their accompanying complexities involving children, support, spousal maintenance and more sizeable assets and/or debt, can accrue significant attorney’s fees during dissolution.

In Arizona, attorney’s fees in civil litigation cannot be awarded unless a statute specifically authorizes it; even then, whether or how much to award is within the Court’s discretion. In family law litigation, attorneys and judges generally look to A.R.S. § 25-324 (other statutes can apply under appropriate circumstances). Following is a brief breakdown of that statute:

• Subsection A provides that the Court, after considering both parties’ financial resources and the reasonableness of each party’s position taken in the case, may order one party to pay a reasonable amount to the other party for costs and expenses. (Those two issues are discussed below.)

• Subsection B provides a basis for the Court to award reasonable costs and attorney’s fees if a petition is not filed in good faith, not grounded in fact or based on law, or filed for an improper purpose, such as to harass the other party or to unnecessarily delay litigation or increase its cost.

• Subsection C identifies attorney’s fees, deposition costs and any other necessarily incurred expenses as included in “costs and expenses” under subsection A.

Parties’ Financial Resources

As a practical matter, proving disparate financial resources is a difficult burden. The reason: Arizona courts tend to strive for post-divorce financial parity between the parties (via asset distribution, spousal maintenance or both), meaning that the parties generally emerge from their dissolution in comparable financial conditions.

Unreasonable Position

The credibility of an “unreasonable position” argument is undermined by the reality that parties in a contested divorce almost never view each other’s positions as reasonable. Further, just because a Court rules against a party’s position does not mean that the Court will find that party’s position so unreasonable as to justify an award of attorney’s fees. In fact, my experience has been that, in denying an award, the Court often finds that both parties have acted in bad faith.

conclusion

I regularly advise clients to assume (depending on specific circumstances) that the Court will not grant an award of attorney’s fees and to budget accordingly. This advice is strengthened by the fact that obtaining an award of attorney’s fees is not the same thing as actually receiving payment; collection can be a daunting process, particularly from a freshly scarred ex-spouse.