Who Pays Attorney Fees in a Divorce?

How the finances typically shake out in Oklahoma

Divorce is an expensive proposition for all parties involved. If you are currently involved in a divorce–or are thinking about filing for one–you may be concerned about the costs of hiring a lawyer to represent you. A common question many Oklahoma residents ask is, “Can I get my spouse to pay my attorney fees?”

There is no simple, one-size-fits-all answer to this question. Historically, the rule in U.S. courts is that each side should pay its own legal fees in a civil lawsuit. But there are numerous exceptions created under state law.

“There are two big misconceptions I see,” says Aaron D. Bundy, a family law attorney in Tulsa. “One is that the prevailing party gets attorney fees—or, the loser pays. The other one is that the richer party automatically pays.”

Balancing the Equities

A judge has the discretion to order one spouse to pay the other spouse's reasonable expenses in connection with divorce litigation, “as may be just and proper considering the respective parties and the means and property of each.”

This is commonly known as a “balancing of the equities” rule. Under this rule, it does not matter who “wins” the divorce case. Rather, the court must look at all of the circumstances leading up to the divorce and decide whether to make an equitable award of legal fees.

“The judge has a lot of discretion in terms of awarding attorney fees,” says Bundy. “But a lot of it is outcome-based. In a case where there’s substantial property available, and everybody acts reasonably, then it’s probably going to be each pay your own attorney fees. Where you see that shift is if one side behaves badly during the case. Sometimes, you can prevail, but if you behave badly—you do things that make the case drag out, don’t cooperate in discovery, file meaningless things—you can actually have to pay the other side’s.”

As the Oklahoma Court of Civil Appeals explained in a 2009 decision, Husband v. Husband, the factors a judge may consider include:

  • the outcome of the action
  • whether either spouse “unnecessarily complicated or delayed the proceedings, or made the subsequent litigation more vexatious than it needed to be”
  • the relative “means and property” of the spouses

With respect to this last item, a judge may decide that the division of marital property in the divorce itself gives each spouse sufficient means and property to pay their own attorney fees. A qualified Oklahoma family law attorney can explain this concept to you in greater detail.

Can I Hire a Divorce Attorney on a Contingency Fee Basis?

In personal injury cases, it is common for a plaintiff to hire a lawyer on a contingent basis. This means the attorney does not charge the client for any fees or costs upfront. But if the plaintiff ends up recovering any damages from the defendant, either by litigation or settlement, they agree to pay the attorney a certain percentage of that award. You might be wondering if you could do the same thing when hiring an experienced Oklahoma divorce attorney. Here, the answer is quite simple: You cannot. The Oklahoma Rules of Professional Conduct expressly forbid contingent fee arrangements in any domestic relations matter. This means that an attorney cannot ethically accept a fee based on a promise to obtain a divorce, child support, alimony or a particular property settlement for a client.

For more information about this area of law, check out our divorce overview.

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