What if You Can’t Afford Your Legal Expenses?

In many marriages, one spouse earns disproportionately more money than the other. The breadwinner supports the family financially, while the other party may earn less income or none at all. What happens when this couple splits up and the person without an income needs to hire an attorney?

The court may, under the appropriate circumstances, order the higher earner to pay for some or all of the other party’s legal expenses. It is the goal of the court to equalize the parties’ financial situations as much as is practical with respect to separation, divorce, spousal support, child custody, and child support.
 

Need-Based Analysis

When determining whether one party should cover some or all of the other’s legal expenses, the court applies a three part test called a need-based analysis. This involves:

• Weighing the parties’ respective needs and incomes
• Considering whether each party has access to enough money to hire attorneys
• Determining whether one party is capable of paying the legal expenses of both parties

During a need-based analysis, the court may consider essentially any factor concerning the parties’ financial circumstances. This includes discretionary expenses, debt payments, and living arrangements.

The court may not, however, consider whether the party seeking coverage is likely to win or lose in the divorce. The court simply aims to ensure that both parties have access to sufficient legal support.

The one exception is where, during the past five years, the requesting party was convicted of or served a sentence for a specific violent sexual felony against the other spouse. In this situation, the spouse who was the victim cannot be ordered to pay the offender’s legal expenses in the divorce.
 

How Much Will Be Covered?

Often, the court does not require the higher earner to pay for all of the legal expenses incurred by the other. The court will review the attorney’s fees and costs to determine what is “just and reasonable” under the circumstances. Most of the time, while one party may earn the majority of the income, this does not mean that the party can afford to pay for both attorneys.

If the court determines that the higher earning party will bear the cost of the other’s legal representation, this does not constitute a blank check for the supported party. The court may set the amount to be paid depending upon what is deemed just and reasonable considering the parties’ relative circumstances.

The court may increase or decrease this amount throughout the divorce, child custody, or child support process. However, the court does not intend to fund a supported party’s efforts to over-litigate the divorce.

If you are concerned about how the cost of legal counsel could affect your divorce, you should speak with an experienced divorce attorney as soon as possible. It is important to address these questions early in the process.