Divorce can be expensive. Not only is divorce a major emotional decision, but it involves many financial decisions, one of which is whether to hire a lawyer. One of the questions that you might consider as you research divorce attorneys are attorney’s fees and whether you can afford a lawyer. Because attorney’s fees can add up, you might ask whether you can get your spouse to pay your attorney’s fees during your Washington divorce.
There are certain situations where you might be able to get your spouse to pay your attorney’s fees, but these situations are very specific. If you find yourself at a legal disadvantage because your spouse can afford a divorce lawyer and you cannot, if your prenuptial agreement offers guidance on who pays attorney’s fees, or if your spouse has engaged in bad behavior or is using litigation to harass you, you might qualify to have some, or all, of your attorney’s fees covered by your spouse.
In this article we’ll explore situations where the court may order a spouse to pay attorney’s fees. These situations include:
- Options for Low-Income Spouses: Motion for Attorneys’ Fees. The court may order that your spouse pay your attorney’s fees if you are low-income, and your spouse can afford to pay your attorney’s fees as well as their own.
- Prenuptial Agreements. The court may order your spouse to pay your attorney’s fees if you have a provision in your prenuptial agreement that states that your spouse would be responsible for paying attorney’s fees in the event of a divorce.
- Bad Behavior. The court may also order your spouse to pay your attorney’s fees if your spouse engages in poor behavior (like lying to the court or using the court to harass you) that results in court sanctions.
- Winning Certain Proceedings. If you file a motion with the court, and win, you might be entitled to receive money to cover your attorney’s fees in some specific situations.
Options for Low-Income Spouses: Motion for Attorney’s Fees
Washington state has provisions that allows low-income spouses to file a motion for the court to order the other spouse to pay their divorce attorney’s fees under RCW 26.09.140, but in order for the motion to be successful, you’ll have to provide evidence to the court that you are truly low-income, that you need a lawyer to help you get the best possible result in your divorce, and that your spouse can afford to pay your attorney’s fees as well as their own.
If your spouse can afford a divorce attorney, but you cannot afford one, you might find yourself at a disadvantage and find yourself out-lawyered should your spouse try to fight the divorce case in court with the representation of a strong divorce litigator. If you cannot afford a lawyer, but your spouse has already lawyered up and could afford to pay your legal fees, you can file a motion for attorney’s fees in the Superior Court where your divorce case has been filed.
This motion is generally applicable in only specific instances. In situations where there is merely a difference in income between two spouses, where one earns a little more than the other, but both parties can generally still afford a lawyer, the court may not award attorney’s fees to the lower earning spouse. This is because the differences in income will largely be worked out through the divorce settlement process.
Yet, there is a difference between being lower earning, and being low income. Generally, the court will award attorney’s fees under RCW 26.09.140 if one partner is indigent, namely, in a situation where one party can show the court that they truly have no means to pay for legal representation, no means to finance legal representation, and where their former spouse has the means to not only pay for their own legal representation, but sufficient means to pay for their spouse’s legal representation. This all goes back to basic principles of fairness and would similarly apply to the way the court would approach a divorce settlement. The court doesn’t want to see a divorce settlement where a spouse ends up needing state support, while the other spouse leaves with all the wealth and resources.
When considering whether to approve a motion for attorney’s fees, the court may look closely at all your resources, and assets, including stocks, or significant equity in a home. The court may look at workers’ compensation payments, social security disability payments you receive, or stocks and bonds you might own. The court will also want to see your post-separation expenses and income and see whether there are any expenses or bills you can delay paying to cover your divorce costs.
The court may also evaluate whether a lawyer is truly necessary for you to have a fair outcome. For example, if your partner has offered you a fair divorce settlement, but you want to fight the case in court anyway, the judge might determine that you don’t need a lawyer.
It is important to carefully consider whether you qualify for a motion for attorney’s fees before you file. Courts tend to award attorney’s fees only when one partner is truly indigent, or when your former partner can significantly outlawyer you, and truly has the resources to pay for both their own legal fees and yours. You may want to speak to a lawyer before you file the motion because if a judge believes you are wasting the court’s time, you might be ordered to pay your spouse’s legal fees.
What are the steps for filing a motion for attorneys’ fees?
You or your lawyer will need to fill out the Motion for Advance Lawyer Fees and Costs form and file it with the Superior Court Clerk. You’ll also need to properly serve the paperwork to your spouse or his or her attorneys. After you file a motion for attorney’s fees, you’ll need to attend a hearing.
When filing your motion, you’ll need to submit evidence to support your low-income status or support your claims about your financial situation. You may also want to include any other facts about your case that the judge should be aware of. For example, if you are the children’s primary caregiver and receive no child support from your spouse, this would be an important detail that the judge would want to know. If you quit working to be a full-time caregiver for your children, this would also be something you might want to include. If you sought the assistance of Northwest Justice Project, but the lawyers there suggested you file a Motion for Advance Lawyer Fees and Costs, you might want to also include this note in your filing.
It’s important to keep in mind that if you lose the motion, you could end up being responsible for your spouse’s legal fees if he or she incurs attorney’s fees when responding to the motion, so it can be helpful to speak to a lawyer before you file.
The family lawyers at Truce Law may be able to assist you with this process. We may be able to help you negotiate advance attorney’s fees. Furthermore, we can learn more about your situation, see if you qualify to file a motion for attorney’s fees, and help you with the filing. Our lawyers may be able to help you fill out the forms, and even receive paperwork and payments from your partner if, and when, you win the motion for attorney’s fees.
If you end up winning the motion to have your partner pay your attorney’s fees, there are some things you might want to think about. First, your partner will pay the attorney you choose directly. When your partner is paying the bills, this can create its own set of issues, including resentment on the side of the partner who is being forced to pay the bill. When you file a motion for advance lawyer fees and costs, any information you file with the court will be on the public record. While you can ask the court to seal the documents to protect your privacy, this isn’t your only option. Another alternative is to explore whether collaborative divorce is right for you and your partner. If your partner is willing to negotiate a divorce settlement with you outside of court and willingly cover your attorney’s fees in the process, you may be able to avoid having to file a motion for attorney’s fees altogether.
With collaborative divorce, both you and your partner will still be represented by your own attorneys, but you’ll sign an agreement not to fight out your divorce in court. When you sign this agreement, your partner could possibly agree to pay all attorney’s fees, especially if you would have been likely to win had you filed a Motion for Advance Lawyer Fees and Costs. When one partner is paying all the fees, it’s easy to see how resentment can fester, especially if the case gets drawn out or ends up going to court. By choosing the collaborative process, both you and your partner agree to work together to negotiate a settlement peacefully. Truce Law is a collaborative law firm in Washington that may be able to help you, and your partner, find a peaceful path forward. Finally, if you are likely to win a motion for attorney’s fees, and you and your partner are on good terms, you might want to speak to your partner to see if he or she would choose collaborative divorce, instead of court.
Finally, if you file a Motion for Advance Lawyer Fees and Costs, the court will want to see that you are taking actions to improve your financial situation. If you left the workforce to raise your children, for example, you might be asked to submit evidence that you’ve begun a job search. If you fail to show the court that you are taking steps to help yourself, in a long dragged-out divorce, the court might eventually ask you to pay your own legal fees. By choosing the collaborative divorce process, you might be able to avoid time-consuming litigation, reducing the risk that the court might eventually ask you to start paying your own legal fees.
Finally, if both you and your partner are both indigent (low-income), it may not make sense to file a motion for attorney’s fees (after all, if your partner cannot afford his or her own attorney’s fees, he or she certainly won’t be able to pay yours, either). In this situation, you might be better served exploring legal aid programs in Washington that provide legal assistance to low-income individuals and families or consider speaking to a courthouse facilitator to explore your options. The Northwest Justice Project can help you explore whether you might qualify for legal assistance. In a situation where a motion for attorney’s fees would be appropriate, the attorneys at these legal aid programs or even a courthouse facilitator might be able to point you in the right direction.
If your partner can afford to pay your legal fees and you qualify to file a motion for attorney’s fees, and win, you’ll have more options, including hiring a lawyer of your choice, like the family law attorneys at Truce Law who can help you with the next steps.
Prenuptial Agreements
If your prenuptial agreement specifies that one spouse would be responsible for all your attorney’s fees in the event of a divorce, then the court will generally follow the provisions in the prenuptial agreement. Sometimes prenuptial agreements also have provisions that require the losing partner to pay the other partner’s attorney’s fees if one party tries to challenge the prenup in court and loses. The family lawyers at Truce Law can help you take steps to enforce a prenuptial agreement if you have one, and help you understand the potential consequences of challenging a prenuptial agreement.
Bad Behavior
If your former partner files frivolous motions or tries to drag out the divorce process without grounds to do so, the judge might require that your partner pay your attorney’s fees. CR 11 violations could result in a situation where a judge would order a person using the courts to harass you to pay your legal fees. Under CR 11, motions made by the court must have legal grounds, be made in good faith, and not be filed to harass, delay the divorce, or increase the other party’s legal costs. If your partner is lying to the court, or otherwise trying to drag out your court case without grounds to do so, the court might order your partner to pay your attorney’s fees.
Take, for example, a situation where there is a clear prenuptial agreement. If your partner challenges the prenuptial agreement without grounds to do so, he or she might end up having to pay your attorney’s fees, if he or she loses the challenge.
There are other situations where the court may impose sanctions (in other words, make your former spouse pay your attorney’s fees). If your partner makes false allegations against you that drags out the legal process, abuses you, or tries to hide assets, your partner might be subject to sanctions. You may also be able to sue your spouse if he or she is holding your separate property, or denying you access to it. In this situation, you’d need to establish that the property is truly separate. A family law attorney at Truce Law can help you navigate these challenging situations.
Winning Certain Proceedings
If you win certain motions or proceedings, you may also be able to collect attorney’s fees. For example, if your former partner frivolously tries to file a motion for attorney’s fees and loses, you might be able to seek attorney’s fees if you win. There are other situations where the court may order your spouse to pay your attorney’s fees. If you file a protective order and win, or if you file for child support because your partner hasn’t been paying it, you may be able to recover your attorney’s fees, when you win these motions.
Key Takeaways
In most situations, when one partner merely makes more money than the other, but both partners have the resources to pay their own attorney’s fees, the court won’t order one partner to pay the other partner’s attorney’s fees (unless one partner engages in bad behavior or loses certain motions). Typically, disparities in income are addressed by divorce settlement agreements that result in alimony awards, child support awards, or equitable distribution of property and assets that balance the scales. There is a difference between being a lower-earning spouse, and a low-income one. A lower earning spouse may still have the resources to pay a lawyer, while a low-income spouse does not.
Yet, there are situations where you might be entitled to seek attorney’s fees by filing a Motion for Advance Lawyer Fees and Costs. If you are low-income and have no resources, but your partner has the resources and the money to cover both his or her lawyer fees and yours, then you may want to consider filing a Motion for Advance Lawyer Fees and Costs. If you have a prenup that specifies that one partner should pay all legal fees, then the court will generally require a divorcing couple to honor this agreement. Finally, there are special situations, where one partner files frivolous motions, uses the court to harass the other spouse, engages in bad behavior like lying, or loses certain motions, where the court may order the spouse to pay a portion of the winning partner’s attorney’s fees.
If you have questions about whether you can get your spouse to pay your divorce attorney’s fees, reach out to Truce Law today. Our family lawyers can learn more about your situation and help you explore your options.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.