A contested divorce is not cheap. Lawyers charge between $200 and $300 an hour. A divorce may cost each spouse $3,000 or $10,000. It all depends on the amount of time needed to resolve the divorce. Which is reflective of the complexity of the issues, and the level of hostility existing between the parties? Divorce is not always rational so hostilities can be high.
Who pays all these attorney fees? In US courts there is something called American Rule. This rule states that each party will be responsible for their own fees. This is the general rule. There are exceptions to this rule, which we will present to you later in the text. Because of the American Rule, litigation is more common than in other parts of the world. In other countries, the winner of the lawsuit will receive their attorney fees.
Divorce Procedure
Unlike a legal separation, a divorce is a complete dissolution of the marriage. When the divorce is finalized, the two parties are no longer married and both parties are free to remarry. All their assets and debts are divided according to the property laws of the state they live in.
If you have children, then custody is determined, as well as the terms regarding child support, health insurance, and maybe other children’s expenses.
There are two ways to file a divorce. The first way is a mutual agreement (or uncontested divorce). If you can your spouse cannot agree then you will be filing a contested divorce. Whether your divorce is uncontested or contested is the first question you must answer. The difference is the two approaches is huge. According to Right Lawyers the majority of spouses looking for a divorce are not sure if their divorce is contested or uncontested. To help with this question Right Lawyers created an uncontested workbook. The workbook helps spouses figure out what type of divorce they have.
Divorce Costs and Fees
It is not easy to predict or estimate a specific amount in dollars because the costs will depend on dozens of factors. Here are some of the important factors that determine the costs;
- Whether the divorce is contested or uncontested.
- The court costs in your state or county.
- The rates attorneys charge in your city or state.
- Whether you hire an hourly lawyer or a fixed fee lawyer.
- The complexity of assets and debts.
- The level of hostility between the spouses.
- The legal positions each spouse is seeking.
- Whether divorce involves child custody.
This is merely general guidance on how the fees might be calculated. An uncontested divorce might cost $1,500 in Las Vegas while the same uncontested might cost $2,500 in Los Angeles. Attorneys in Los Angeles charge more, on average than attorneys in Las Vegas.
A contested divorce will cost more than an uncontested divorce. According to TheStreet.com, the average contested divorce costs $15,000. But this is an average and your divorce can be less or much more.
Who Pays the Divorce Fees?
Usually, each party in a lawsuit is responsible for their attorney fees. But there are exceptions. Some states allow for the other side to be responsible for attorney fees when one party takes an unreasonable position. A court may allow for the “prevailing party” to be reimbursed attorney fees. And in a divorce, state law may allow for the spouse who makes the most income pay for attorney fees.
Attorney fees based on unreasonable positions require a showing that the other person knew their position was not supported by law. An unreasonable position needs to clearly be unreasonable. It needs to be an absolutely clear-cut case that the position was unreasonable. Child custody is never an unreasonable position. Fighting for more than half of the equity in the home might be unreasonable.
A prevailing party can be used when a spouse requests something in the initial documents and the judge agrees. Ordering attorney fees based on prevailing party attorney fees is at the complete discretion of the judge.
Order the higher-earning spouse to pay for attorney fees is mainly ordered in community property states. In those states, the income earned by a spouse is community property. Community property is divided evenly. So, technically half of your spouse’s income is yours. And vice versa. This is why the higher income earner may be ordered to pay for the attorney fees.
