This article explains whether the court is likely to order your spouse to pay your attorney’s fees in your Washington State divorce. In our firm’s experience, less than half of divorce cases result in a fee award from one party to the other. It can happen though, and there are several reasons why a court might do it.
I. Need & Ability.
In a divorce, the most likely basis for an award of attorney fees is what practitioners call “need and ability”. The relevant statute, RCW 26.09.140, authorizes the court to consider the financial resources of the parties and award attorney fees and other costs of the case from one spouse to another. In other words, the court looks at whether one party has the need for an award of attorney fees and the other spouse has the ability to pay it.
1. Not Customary. You might be thinking, “there’s almost always going to be a difference in income between two people, so why aren’t fee awards common?” Good question (patting myself on the back). This is partly because the parties’ incomes become much closer to each other after child support and especially after spousal maintenance. More importantly, jurists tend to disfavor fee awards and grant them only under more remarkable circumstances. For example, the court might order attorney fees if:
- One party enjoys much more income than the other. As mentioned, this difference in incomes often narrows or disappears after child support or maintenance. But the court might nonetheless award attorney fees on this basis for a time period prior to child support and/or maintenance, such as when the lesser-earning spouse’s lawyer prepared the case for filing.
- The lesser-earning spouse does not have enough money to proceed with the case. Notably, borrowing to pay an attorney is the norm. It would be unusual for a jurist to interpret borrowing as inability to proceed.
- One of the parties has enough income or assets that a fee award would be affordable. Often judges and commissioners take a long-term perspective when making this evaluation. The fee award might seem sizable now but less impactful on the financially advantaged spouse’s lifestyle after he or she has had time to recover.
2. Factors Court Considers. When evaluating need and ability the court looks at the following factors in this approximate order:
- The parties’ incomes. This includes all sources of income, not just income from the parties’ regular jobs. For example, the court should consider amounts a boarder pays to rent a room in the former family home. To a lesser extent the court might consider income the parties could be making, such as if the lesser-earning spouse lives alone in the former family home and could rent out a room.
- Each party’s financial obligations. This can include all debts and living expenses, but sometimes the court only looks at basic needs. If neither party has enough money, the court might assume the parties should pay for basic needs and allow other debts to accumulate.
- Assets & Their Character. In this context, an asset’s “character” means whether the asset is community or separate property. If the marital community has sufficient liquid assets – such as stocks, bonds, and mutual funds – the court might order the parties to sell some of them to create cash for attorney fees. To a lesser extent the court might order a spouse with substantial separate property to pay the other spouse’s attorney fees. Conversely, the court is less likely to award fees to a spouse if he or she has significant separate property, especially liquid assets.
- Difficulty & Value of the Case. The more difficult and costly the case, the more the court is likely to award in fees. But the court will want to know the fees are worth it. If the economically disadvantaged spouse wants to pursue costly litigation over something of nominal value, he or she will probably have to pay his or her own lawyer to do so.
3. Stages of the Case. The court can award fees on the basis of need and ability at virtually any stage of the case, including temporary orders, a motion for modification for temporary orders, final orders (trial), appeal, and post-divorce proceedings, such as motions to vacate an order, modification of child support, maintenance, or the parenting plan, and actions for partition of undisclosed assets. In our firm’s experience, fee awards are less common after entry of the divorce decree, such as when parties petition for subsequent modification of the parenting plan or child support order. Why is unclear. It may be because parties are unsure and embarrassed to ask.
4. Lump Sum. Courts typically award attorney fees in lump sums (e.g., “pay $5,000 in 30 days”) rather than making them an ongoing monthly obligation (e.g., “pay $500 per month during the pendency of the case”). Perhaps because of this, a jurist is much more likely to order fees – particularly a large sum of fees – if the requesting spouse shows a sufficient source of readily available funds. Readily available funds might be cash savings or liquid assets.
5. Wide Discretion; Few Limitations. Fee awards are difficult to predict because the law affords the judge or commissioner wide latitude to do whatever he or she sees as fair. There are very few limitations.
One somewhat common limitation: caselaw indicates the lesser earning spouse should not receive an award of fees where the other spouse has to borrow from family to pay his or her own lawyer. To do otherwise would unfairly shift a greater financial burden onto those family members. However, the court might require the financially advantaged spouse to borrow from lending institutions to pay the other spouse’s fees if the former person has the ability to borrow and the latter does not.
II. Fee Award Based on Bad Action.
Occasionally the court requires a spouse to pay the other party’s fees if the former did something bad in the case. This is rare, even though spouses routinely lie and behave poorly in divorce proceedings. It usually requires egregiously bad behavior to trigger this.
There are actually at least three wide-sweeping, overlapping theories that allow a court to order a poorly behaving spouse to pay the other litigant’s fees. The three legal doctrines are CR 11 violations, frivolous filings, and intransigence.
In pertinent part, CR 11 requires a party and attorney to be truthful, research the law and facts, avoid taking legal action when the law and/or facts clearly do not support it, and refrain from taking legal action for improper purposes, such as to cause delay, harass the opposing party, or increase the other party’s legal bill.
The prohibition against frivolous filings is self-explanatory. Parties and attorneys should not ask the court to take actions the law clearly does not allow.
Intransigence is essentially a catchall for bad actions during litigation. Case law rarely attempts to define it, but examples include blatant lying, hiding income, refusing a nearly perfect settlement offer, and overly litigious behavior.
Fees awards for bad behavior must not exceed what the innocent spouse paid or will pay because of the bad action(s).
III. Fees Based on Winning.
Sometimes the law authorizes or requires an award of fees to the prevailing party in certain subsets of proceedings, such as a motion for a protective order (whoever wins might get fees), contempt (moving party always receives fees if opposing party found in contempt), or discovery disputes (moving party usually receives fees if successful on the underlying motion). These topics go beyond the scope of this article.
IV. Fees Based on Contract.
In rare instances, the parties have a contract providing for an award of fees, such a prenuptial agreement or settlement agreement. The court usually complies with whatever the contract states.
Notably, sometimes contracts state something to the effect of “If Party A brings a lawsuit to enforce this contract and prevails, Party B will pay party A’s associated attorney fees.” The law often construes these as two-way fee provisions, requiring a fee award to whoever wins the lawsuit, even if it’s Party B.
V. Tips Regarding Fee Awards.
1. If you request fees, make sure to present evidence to support your argument. The requesting party bears the “burden of proof.”
2. Make sure to submit a financial declaration and sealed financial source documents if you request fees on the basis of need and ability. You can find the forms on the Washington Court Forms Website under Family Law > Divorce > Divorce (Dissolution).
3. With respect to fees based on need and ability, you can usually reassert your request even if you made the same request previously and regardless the outcome of the prior request. You essentially get multiple bites at the apple, because people’s finances and their need for fees constantly change.
4. If you win fees at a contested trial, make sure the written orders state the court’s reasoning. This helps ensure your fee award is not undone on appeal or remanded for more fact-finding.
5. Do your best to help improve your financial position on your own. The court can impute you – deem you to have income you do not have – if you are not doing your best to support yourself. If you are a homemaker, the court should give you a little time to get on your feet before imputing you, but temporary orders often require housewives and househusbands to find work and submit a weekly job-search log.
6. If you are hoping to request fees while your case is still proceeding, see our article on How to Get Temporary Orders.
7. If you are hoping to request fees at trial, see our article on How Trial Works: Divorce & Family Law.
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