Appellate Court Requires Spouses to “Level the Playing Field” When Paying for the Attorneys

If you are in a divorce proceeding, you’ll likely hear the term “leveling the playing field” if there are discussions regarding who pays the attorneys fees in your case.

The law provides that one party should not be able to “out spend” the other when hiring an attorney. So if your spouse spends $10,000 on an attorney, then the law says that you should also be allowed $10,000 to pay your attorney. But what happens if neither party has any money, and only one of you is able to borrow money from family? What happens when one party has access to money and the other does not?

The Appellate Court in In re the Marriage of Earlywine decided that very issue. In that case, neither part had enough money to hire an attorney. The husband, James Earlywine, was able to borrow over $8,000.00 from his parents , and that money was paid to his attorney. His wife filed a petition for attorney’s fees, and asked the Court to give her one-half of the money that was paid to her husband’s attorney.

The trial court ordered James to give his wife $4,000.00. On appeal, the Appellate court considered the statute designed to achieve “substantial parity between the parties,” and agreed with the trial court. It was not fair, reasoned the court, that one party would have access to funds to litigate the case and the other did not. So if one side has access to funds, such as a loan, then in order to level the playing field, it must be divided with the other party.

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