Litigation regarding domestic relations matters can get very expensive. Often times, one parent has no monetary resources from which to pay his or her attorney. Meanwhile, the other parent, be it the spouse or ex-partner, has significant resources and is paying good money to his or her attorneys to be adequately represented.
As a result, the Courts have developed a mechanism for which to “level the playing field” and order the parent with superior resources to pay the attorney’s fees of the other party. In dissolution proceedings, if one party has the inability to pay because the other party controls all of the financial resources, the Judge will order the parent with the control over the resources to pay the other party’s attorneys fees at no less than the amount that he or she has already paid his or her attorney. The rationale is that the Judge is “leveling the playing field” to allow both parties an equal opportunity to litigate the issues without an economic disadvantage.
Besides interim attorney’s fees, a party can also request that the other party “contribute” towards the other party’s attorney’s fees, be it because of a delay in litigation, or because the party does not work and is unable to pay his or her attorney’s fees, while the other party has a good job and will continue to make good money in the future. The rationale again is to allow both parties an equal opportunity to litigate.
Finally, a party can also recover attorney’s fees if one party has violated a court order. These fees are mandatory if the Judge finds that there was a violation. The only fees that can be recovered are those that were expended to remedy the violation, such as communication regarding the issue, the preparation and filing of the Petition for Rule to Show Cause, and the subsequent hearing on same.
A bigger question has been whether the same rationale applies to parents that were never married, i.e. parentage cases. This area of the law has been evolving and continues to evolve. The trend has been that interim attorneys fees and contribution towards attorneys fees are applicable to parentage cases, as well as fees accrued due to a violation of an existing Order. The courts have drawn the line at disgorgement, which is when a Judge orders the attorney to disgorge some of its fees in order to pay another attorney in the case. While a court can order an attorney to disgorge its fees in a dissolution of marriage case, at this time, a court cannot order an attorney in a parentage case to be disgorged of its fees.