Who Pays for Legal Expenses in a Divorce?

By Beverly Bird

The cost of a contested divorce can escalate to tens of thousands of dollars, so it's no wonder many couples run into trouble financing the fight. Although a simple uncontested divorce might cost less than $1,000, contested divorces usually require many court appearances by your attorney and your attorney must spend hours preparing for these appearances. At an average hourly rate of $250, spouses can easily spend $2,500 just asking the court for temporary support orders early in the case. When you add in fees for experts, such as real estate appraisers and forensic accountants, the cost of a divorce can skyrocket.

Creating a Level Playing Field

In most states, spouses are responsible for paying their own legal fees and costs in a divorce. However, exceptions exist, especially when one spouse earns considerably more than the other. It would be grossly unfair for your higher-earning spouse to pay a top-notch attorney, leaving you to match wits with that attorney on your own because you can't afford a lawyer. Many states prevent this by ordering the wealthier spouse to pay the other spouse's attorney's fees and litigation costs. Alternatively, a judge might order the liquidation of some marital assets to pay your legal expenses. The court will generally deduct what you received to pay your attorney from your share of the assets when the divorce is final. Your lawyer worked for you and protected your best interests, so the fees are not a joint expenditure.

Fault-Based Issues

Courts generally will not order one spouse to pay the other spouse's legal fees because of marital misconduct that led to the divorce. For example, if your spouse commits adultery and you file for divorce on fault grounds because of this, a judge probably won't order your spouse to pay your attorney's fees as punishment. However, if your spouse drags out the divorce litigation by filing unnecessary motions or by refusing to cooperate, some courts will order the payment of legal fees to compensate you for this. Your spouse generally will not have to pay for your entire divorce, but he might have to pay for the court appearances brought about because of his bad behavior.

Other Options

If there's no possibility the court will order your spouse to help you with your legal costs, you have a few options; however, you should clear them with your attorney first. You might be able to cash in one of your retirement accounts, but if you contributed to it during your marriage, it is considered marital property in most states. You would be using an asset to which your spouse has a right to a share. The same holds true with liquidating other marital assets. Your spouse might put up a fuss, but the court generally will just deduct the money from your share of property when the divorce is final -- just as it might if a judge had ordered a liquidation of assets so you could pay your fees. You can also consider borrowing from family, or taking out a loan in your sole name, which you'd be responsible for paying back after the divorce.

Professional Funding

If there's absolutely no way you can pay for your own attorney's fees and legal costs, ask your lawyer about private investors who might be willing to fund your divorce in exchange for a portion of the assets you receive when the litigation is final. Occasionally, a divorce attorney might be willing to take his fees at the end of your case, after you receive your share of assets, but this is not the norm. You might be able to set up a payment plan with your lawyer, but this still leaves you with the costs associated with the experts necessary to prepare your case.