Almost always in a divorce, one party is in a better financial position than the other. This could be due to one being a stay-at-home parent or homemaker, one party having more education than the other and higher earning capacity, or one party having a more lucrative career than the other. Regardless of the basis for it, a question that is often asked by the lower or non-earning spouse is “can’t the court make my ex pay my attorney fees?”
Divorce Process
During the divorce process, attorney fees are generated by everything the attorney does for you, including preparation for court or mediation and general counseling of the client. There is no guarantee that the court will require one party to pay the attorney fees of the other. However, depending on the discrepancy in income levels and the access each party has to marital assets, it is possible that fees will be ordered. Minnesota statutes do state that if an award of fees is necessary for a party to carry on the proceedings, fees should be awarded. This does not allow a party to continue to bring the other spouse back in court for unnecessary hearings though. The court generally will look at one spouse’s need for payment and the other spouse’s ability to pay.
Most divorce cases settle outside of court. When this is done, attorney fees may be negotiated between the parties. Most often, the party with lesser means will pay their attorney fees and other debts out of the property settlement. They may receive more assets or liquid funds to be able to do this. Each settlement is unique. Generally, however, both parties will need some payment to get an attorney involved in the proceedings.
