The largest single cost of litigation is attorney fees. The cost of a litigated divorce can be eye popping. Sometimes the cost of litigation can be so great that the parties may not have sufficient funds to pay the lawyers until their assets are divided.
For the protection of both the lawyer and the client, most lawyers prefer to work with a contract between them and the client, with an up-front payment of a retainer fee. The lawyer works at an hourly rate. Typically, the total number of hours multiplied by the hourly rate is the lawyer’s fee. (This fee does not include attorney costs, such as copying costs, service fees, telephone charges, travel expenses, filing fees, expert witnesses.) When a lawyer is retained, the contract between lawyer and client spells out the terms of the arrangement, and it greatly reduces the chance of a misunderstanding.
Attorney fees can be reduced when the spouses do more of the work associated with a divorce. For example, when the couple cooperates with each other — for example, freely exchanging financial information needed in conjunction with the marital settlement agreement rather than forcing expensive discovery — legal costs can be held down. Uncontested actions also greatly reduce the amount of work a lawyer has to do.
Courts generally do not order the parties to pay each other’s legal fees; however, in some cases, jurisdictions by statute permit courts to award attorney fees in domestic relations cases. Courts, in deciding this, consider the financial positions of the parties, and the court has the discretion to order one party to pay all or some of the other party’s attorney fees if one spouse has the ability to pay and the other one does not. The conduct of the parties may be a consideration in awarding attorney’s fees in divorce actions, and the actions of parties who raise unnecessary issues or raise issues in bad faith may be sanctioned with attorney fees.
In general, divorce courts in the United States follow the American Rule, which means the winning side is not entitled to attorney fees because it won.
The burden of proof is on the party asking the court to make an attorney’s fee award.