Costs can add up quickly in a divorce. It’s not only the expense of the divorce itself that can be significant but also the expenses that are simply a natural part of moving from one home and one shared set of expenses to two. It’s only understandable, then, that most people involved in a divorce want to save money whenever possible. One question that is often asked is – might my ex-spouse be required to pay my attorney fees? The short answer is – it depends. If you’re a dependent spouse, yes – you might be able to receive such an award along with an alimony award. If you’re the supporting spouse, or if you’ve committed some sort of significant marital misconduct, you probably won’t qualify to have your spouse pay your attorney fees. Let’s take a closer look at what this means together.
First and foremost, it’s important to understand the distinction that is often drawn between a dependent spouse and a supporting spouse. From a legal perspective, the spouse who is considered the “dependent” spouse is the spouse who is substantially dependent upon the other spouse in a financial sense. Let’s take a look at a few examples:
- Steve and Lauren got married, and soon after, had two children. While the children were still young, Steve decided to take a more demanding job that required long hours and more travel, to earn a better salary and provide for the family. Because Steve was often away for work, Lauren decided to stop working and stay at home full-time to provide for the children. In this scenario, although both parents are supporting the family in different ways, Steve would be considered the “supporting” spouse and Lauren the “dependent” spouse from a legal perspective.
- Greg and Megan have been married for some time. When they were first married, Greg worked to provide for the family while Megan finished medical school. Upon completion of medical school, Megan took a high-paying, yet demanding job as a surgeon. Greg continued to work as well, but at a less-demanding job with a lower salary so that he could spend more time at home helping around the house and with the children. In this situation, although both spouses earn a salary, Megan, who is the significantly higher earner, would be considered the “supporting” spouse, and Greg would be considered the “dependent” spouse.
Under North Carolina law, a dependent spouse who is entitled to alimony or post-separation support may also be awarded reasonable attorney’s fees. It is important to understand that the request for attorney fees may typically only be made in conjunction with a successful claim for alimony. To successfully make a claim for alimony, one spouse must show, by providing evidence to the court, that he or she is substantially dependent upon the other spouse, who often is the significantly higher earner. Custody issues will also often be taken into consideration by the court when awarding alimony, as well as the ability of each spouse to provide for themselves and the children, both at the time the determination is made and in the future.
Often, when attorney fees are awarded, the court will determine that a dependent spouse lacks sufficient means to cover the cost of litigation by considering the dependent spouse’s ability to pay and disposable income. A request for attorney’s fees must typically be made in either a pleading or on motion. Typically, if successful, the dependent spouse will be entitled to recover fees related to the time his or her attorney spent specifically concerning the claim for alimony. In determining the final amount to be awarded for attorney’s fees, a judge will look to several factors to ensure that the amount is reasonable. These factors include:
- The nature and scope of the legal services;
- The skill and time required by the attorney; and
- The usual fees charged for such services.
If attorney fees are awarded, they might be paid in a lump sum, or in periodic payments over time, depending upon your particular situation.
While having your attorney fees paid by your spouse would be the ideal situation, it’s important to remember and understand that every divorce is slightly different. There are few bright-line rules and many decisions and determinations that will be made based upon each couple’s unique circumstances. As a result, it would be a mistake to simply assume that your attorney’s fees will be paid.
Instead, the wiser course of action is to find and retain an attorney who not only has an excellent reputation but who also charges reasonable and affordable fees. To choose an attorney without any regard for cost because you assume your spouse will be paying for it is a mistake that might cost you more than you’d like to pay down the road. As you look for a divorce attorney, the following are a few of many important factors to consider:
- Reputation
- Experience
- Practice Philosophy
- Affordability
Ultimately, choosing the right attorney is an essential part of making sure the divorce process goes smoothly and is as affordable as possible. It’s one of the most important steps you can take to ensure success, and one you should think through carefully. At The Law Office of Dustin McCrary, we’re proud of our reputation for balancing excellence and affordability, and we would love to offer that balance to you as you move forward with your divorce process. Call us at any time.