Generally speaking, the spouse who is in a stronger financial position may be required to pay for the other’s legal fees in a divorce, however, it doesn’t always work out this way. As in many family law matters, a more appropriate answer to questions concerning responsibility for attorney’s fees is, “it depends.”
Using Community Property to Pay Lawyers
Spouses can agree to use their community property to pay for each party’s lawyer fees. If they use this option, spouses must conduct a careful accounting of community assets used for their legal fees. Family Code section 2032 requires each party who uses community assets for any purpose during a divorce to provide the other party with an accurate accounting of how that property was used.
The obvious disadvantage to using community property to pay for lawyers is that both spouses will have their half of community property reduced by legal fees. This can put the spouse with a weaker financial outlook in a more dubious position. In this case, that party might wish to pursue attorney’s fees from their spouse.
When Spouses Have Disparate Income Levels
Disparate income levels can play a significant role in liability for attorney’s fees during a divorce. If one spouse earns significantly more income than the other, a judge can consider the situation and order responsibility for the latter’s attorney’s fees to the former.
California law provides that each party has the right to equal access to legal representation during a divorce. A judge ordering the party with a stronger financial outlook to afford the other’s legal fees – paid for with separate property – is one way to achieve this parity.
That said, it’s not always the case that the financially stronger party will have to pay. Consider a situation where one spouse earns $4,000 in gross income per month while the other spouse is unemployed. Because the earning spouse’s take-home pay is relatively modest after taxes and living expenses, it might be unreasonable to order that person to pay their spouse’s attorney fees in addition to their own.
You may be required to pay your ex’s divorce attorney fees if you are in a significantly stronger financial position than they are, but this isn’t necessarily the case. You and your spouse can also agree to use community assets to afford lawyers or your spouse may be required to use their separate property to pay for their attorney.
For more information about this topic or to request legal assistance, reach out to Claery & Hammond, LLP online today.