When it comes to divorce proceedings, the question of who pays the attorney's fees is a common one. In Massachusetts, the “American rule” is widely accepted and applied in courts, meaning that each party will normally pay their own legal expenses and costs. However, there are some exceptions to this rule that you should be aware of. In cases of divorce, the court may order payment of attorneys' fees based on various statutes authorizing such awards.
The court may order that fees be paid during a case to cover the future expenses of a case, or at the end of a case. The court may also order attorneys' fees to be paid by a party in cases of annulment, separate support actions, abuse prevention, contempt, child custody and visitation cases, and as a sanction in any probate case. The court may order that your spouse pay some or all of the fees your lawyer charges in your divorce case. This is known as a withholding fee.
If your spouse does not qualify for a full or partial attorney award, this is an option to make payment of divorce attorney's fees feasible. In general, judges don't like to convey that there is a “winner” or “loser” in divorce litigation. To establish necessity and capacity, the court will assess each party's income, assets, needs, and ability to pay attorney's fees. The dependent spouse must be the party who files a petition with the court and requests the judge to award the attorney's fees. The lawyer undertakes to advance, on behalf of the client, all costs and out-of-pocket expenses.
The client shall not be responsible for paying court costs and litigation expenses, except for the amounts charged to the client by the lawyer. Whether the lawyer will receive any payment for the work performed prior to termination, and the amount of any payment, will depend on the benefit to the client of the services provided by the lawyer, as well as the time and circumstances of termination. Most opposition attorneys will comply with requests for documents from their clients formally through a process called divorce discovery. However, if your spouse's lawyer doesn't comply with such requests, your lawyer will need to file a subpoena with the credit card company, bank, or retirement plan which takes time to prepare and costs money. Attorneys' fees and costs vary depending on the scope of services involved in a case, the complexity of the case, and the level of experience of the attorney representing the party. Income disparities are another factor that a judge may consider when considering one party's petition for payment of attorney's fees and costs. You and your spouse can drastically reduce your legal fees by acting reasonably during the divorce process.
A separate statute allows courts to require that one party pay funds that will be used to cover the other party's legal fees while the divorce case is ongoing. In summary, if you are going through a divorce in Massachusetts it is important to understand who pays for attorney's fees. The court may order that your spouse pay some or all of your lawyer's fees in your divorce case. The court may also order attorneys' fees to be paid by a party in cases of annulment, separate support actions, abuse prevention, contempt, child custody and visitation cases, and as a sanction in any probate case. The lawyer undertakes to advance all costs and out-of-pocket expenses on behalf of their client. The court will assess each party's income, assets, needs and ability to pay attorney's fees when considering one party's petition for payment of attorney's fees and costs.
