A common question that divorcing parties ask is whether or not their spouse will have to pay for their attorneys’ fees. There are two types of attorneys’ fees that a party may be awarded: “need-based” and “conduct-based.”
Need Based Attorney’s Fees
An award of attorney fees is permissible under Minn. Stat. § 518.14. Under this statute, the Court shall award attorney fees if it finds the following:
- that the fees are necessary for the good faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
- that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
- that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1.
Getting an award of need-based attorneys’ fees is extremely difficult. The court will look at the income and ability to pay of the party requesting the fees and at the party from whom the fees are requested.
Conduct-Based Attorneys’ Fees
If a party is unreasonably contributing to the length of a proceeding by bringing frivolous claims, then the Court has the discretion to award conduct-based attorneys’ fees.
Nothing in this section (Minn. Stat. §518.14) or section 518A.735 precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding. Fees, costs, and disbursements provided for in this section and section 518A.735 may be awarded at any point in the proceeding, including a modification proceeding under sections 518.18 and 518A.39. The court may adjudge costs and disbursements against either party. The court may authorize the collection of money awarded by execution, or out of property sequestered, or in any other manner within the power of the court.
An award of attorney’s fees made by the court during the pendency of the proceeding or in the final judgment survives the proceeding and if not paid by the party directed to pay the same may be enforced as above provided or by a separate civil action brought in the attorney’s own name. If the proceeding is dismissed or abandoned prior to determination and award of attorney’s fees, the court may nevertheless award attorney’s fees upon the attorney’s motion. The award shall also survive the proceeding and may be enforced in the same manner as last above provided.
Even if the court does award attorneys’ fees to a party, many times it only covers a portion of the attorneys’ fees that the party incurred.
Parties must explain to the court why they should receive attorneys’ fees from the other party. The attorney for the party requesting the fees will prepare an affidavit of his or her hourly rate, the rates of their support staff or other attorneys that worked on the matter, and provide a copy of their fees that the client incurred in that proceeding.
The parties may also ask the Court to have the other party “front” them attorneys’ fees so that they can have an attorney during the pendency of the proceeding. The amount of attorneys’ fees that one party fronted to the other may be taken out of the receiving parties’ portion of the marital assets when the dissolution is finalized.
Of course, if one spouse would like to pay for the other party’s attorney, they may do so.
