Divorce Lawyers' Fees Can Be Reduced When Spouses Act "Reasonably"

Lawyers fees in a hotly fought divorce can be staggering - but they don't need to be.

Cut Legal Fees With Honesty
by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

Attorney fees are a major issue in divorce court. Divorce lawyers in Albuquerque charge between $150 to $375 hourly, so their fees can grow very quickly and become very large.

Given that the single most common problem divorcing spouses face is not having enough money, if they're not careful, they'll find that their lawyers may make that problem worse, not better.

For example, if divorcing parents aren't able to talk to each other respectfully and sensibly about when, where and how they will share their children, they will have to pay their attorneys to talk for them. They can find themselves with combined legal fees of $500 or more just to arrange one weekend visit.

Similarly, divorcing spouses who aren't absolutely honest with one another can find themselves with enormous legal fees because their lawyers will have to spend time questioning and investigating everything the other side says. That can be very expensive.

In divorce cases, the court can order one side to pay all or part of the other side's lawyer fees. This is routinely done in cases where one party has to go to court to get the other party to do what they're supposed to do such as pay support or make the children available for visitation.

Attorney fees are also awarded in cases where neither side did anything wrong but one party has a greater income than the other, or one side knows more about their community property and its worth. The goal is to balance the power.

In Albuquerque, it is fairly common for judges to have the parties pay their combined attorney fees in proportion to their incomes. For instance, if one side's annual income is $50,000 while the other side's is $25,000, the first side would pay 2/3rds of both lawyers' fees, while the other would pay 1/3 of both fees. Proportional payment generally happens if both sides are reasonable or if both are equally unreasonable.

If one side offers to settle the case but the other side refuses to agree and then "loses" in court, judges often order the one who unreasonably refused to settle to pay the reasonable side's attorney fees.

Of course, in the American legal system, each side has a right to demand a full trial about attorney fees. The rules of law say there must be evidence that the fees were reasonable in amount and for work that was necessary to be done. The judge also needs to consider evidence about:

  • the complexity of the case
  • the successfulness of the outcome
  • the lawyer's reputation among her peers
  • the ability of each party to pay

and other factors. People who insist on a full trial on attorney fees need to know they will incur still more attorney fees to argue about attorney fees. That can include fees to other lawyers who serve as expert witnesses for the original lawyers. I once presided over a trial where the parties incurred $14,000 in legal fees and expert witness fees to argue about $5,000 of attorney fees.

The lesson is that lawyer fees don't need to become enormous in divorce cases if the divorcing spouses are honest and reasonable. But, if one or both of them loses their good sense, the lawyers fees can be staggering.

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