Who Pays Legal Fees in a Divorce?

  •   |   Meghan Freed

"Who Pays Legal Fees" in a white square with a blue border.Understanding who pays legal fees in a Connecticut divorce can be a bit confusing — and for some people, counterintuitive.  For example, some people think:

  • “My ex wants the divorce, not me.  I shouldn’t have to pay a lawyer for something I didn’t ask for and don’t want.  Both of our legal fees should be on my ex,” or
  • “My spouse is the one who had an affair — my legal fees should be my ex’s responsibility,” or
  • “My inlaws are going to support my ex for the rest of his life financially, and I have to rely on myself and my part of the marital assets.  The least my ex can do is pay my legal fees.”

Generally speaking, that’s different from how it works.

Connecticut follows the default “American Rule” that each party is responsible for their legal fees.  Read on to (1) explore the general principles regarding legal fee payments in a Connecticut divorce, learn when courts are more likely to make exceptions, and (2) shed some light on how it may apply to your specific situation.

Read: When Reality Doesn’t Match Up With Your Vision

“American Rule” for Legal Fees

Connecticut adheres to the “American Rule,” which implies that spouses are individually responsible for their own legal expenses in a divorce.

Read: How Do Legal Fees Work in a Connecticut Divorce?

Use of Marital Assets for Divorce Attorney’s Fees

Under the automatic orders in Connecticut divorces, both spouses can use marital assets to fund reasonable attorney fees. However, it’s crucial to note that although marital funds can be utilized to pay legal fees, each spouse remains ultimately responsible for their own expenses.

Read: Can I Withdraw Retirement Funds to Pay My Divorce Attorneys’ Fees?

Can a Spouse Ever Be Ordered to Pay the Other’s Legal Fees?

Yes.  Despite the American Rule, the court has the authority to order one spouse to pay the other’s legal fees both while the divorce is pending (“pendente lite“) or when the divorce is finalized.

Read: What Is the Average Retainer for a Divorce Attorney?

Attorney’s Fees During the Divorce

While the divorce is pending, the court may order one spouse to pay the reasonable legal fees of the other spouse.  This typically happens when sufficient funds are in the marital estate, but one spouse solely controls those funds. In other words, Connecticut aims to ensure that both spouses have equal access to legal representation and that their rights are protected.

Final Legal Fees in a Divorce

The court has the authority to order the payment of legal fees, either in full or in part, at the conclusion of the case.  But remember, the default is that each spouse is responsible for their own legal bills.  In other words, just because the court has the authority to do so doesn’t mean it’s likely.  Legal fees in a divorce are not automatically awarded based on one spouse’s ability to afford them. Instead, the judge must consider various factors, such as the spouse’s age, health, occupation, and financial ability to pay. Any decision to award legal fees is balanced against these factors, similar to how alimony is determined. Other financial aspects of the divorce judgment can also impact whether one spouse is responsible for paying the other’s attorney’s fees.

Read: How Much Does a Divorce Cost?

When Are Courts More Likely to Order a Spouse to Pay the Other’s Lawyer?

There are a few circumstances where courts are more likely to find an exception to the American Rule.

Access to Assets

There are also instances both during and at the end of a divorce where courts are more likely to order a spouse to pay the other’s legal expenses.  This most commonly happens when one spouse doesn’t have access to sufficient assets and the other spouse does.

Contempt of Court or Bad Faith

Courts are more likely to order a spouse to pay the other’s attorney fees when they intentionally disobey a court order and are in contempt of court.  However, note that even when one spouse is in contempt, the other doesn’t automatically receive attorney’s fees.

Sometimes, courts also order legal fees for the other spouse when one party acts in bad faith.  In these cases, the conduct is generally extremely dishonest or egregious.

Read: What Is Contempt of Court?

By the Spouses’ Agreement

The spouses can also agree to handle attorneys fees in a different matter.  For example, as part of a global settlement, the parties may decide all the attorneys’ fees will come from one spouse’s share of the marital property.  Or, the parties might choose to equalize both lawyers’ fees between the two of them.  When reviewing their final divorce settlement, the judge has the authority to make their agreement on legal expenses an official court order.

Read: Settlement & Divorce

Prenuptial Agreements

A lesser-known feature of prenuptial agreements or “prenups” is that future spouses can pre-decide how to handle legal fees in the event of a divorce and opt for something other than the American Rule.  Assuming the provision of the prenuptial agreement is enforceable and equitable, the divorce court will likely follow the plan in the prenup.

Consult With Your Divorce Attorney

There are many complexities involved in determining legal fee payments, and they depend heavily on your particular circumstances.  It’s crucial to discuss your specific case with an experienced divorce attorney who will tell you the truth — even when it’s not what you want to hear.  They can provide guidance on how the principles discussed here might apply to your situation and help you navigate the process effectively.

Read: Don’t Mistake Truth for Weakness: It’s Strength

Next Steps

In Connecticut divorces, the general rule is that each party is responsible for their own legal fees. While there are provisions allowing the use of marital assets to cover legal expenses, unless a unique circumstance warrants an exception, each spouse remains ultimately accountable for their individual fees. Understanding these dynamics and seeking guidance from a qualified attorney can help you make informed decisions and approach the divorce process with clarity.

Freed Marcroft LLC

Freed Marcroft LLC