Will My Spouse Have To Pay My Attorney’s Fees?
Like most American institutions, the American body of law—commonly called jurisprudence—is largely derived from British law the existed in the 18th Century. However, when America left British rule, it sought to assert its independence in nearly every way practical. For example, American racetracks began to run races counterclockwise (as they still do today) simply because the British ran races clockwise. Another example of this can be seen with the “American Rule,” dealing with how an attorney is paid. Under the American Rule, each party pays his or her own attorney, regardless of the result, e.g., whether they win or lose. This was a sharp contrast to the British Rule, where the prevailing party paid for both sides attorney’s fees. Below is a discussion of issues concerning attorney’s fees in Kansas divorce proceedings.
American Rule In Context Of Divorce
The default rule in Kansas (and every other state) is still the American Rule: each side pays his or her own attorney. Only in extremely limited cases, generally where this a statute, will the other side be responsible for paying the other party’s attorney. In the context of divorce, such a statute exists in Section 23-2715. This statute is very unusual, however. It allows the court to award costs and attorney fees “to either party as justice and equity require.” Two things make this fee-shifting statute unusual, as the court noted in re Marriage of Langley. First, the fees can be award to either party, not just the prevailing party. Though this is unusual, it makes sense in the context of divorce by avoiding the difficulty of having to determine when a party “prevails” in a divorce. After all, there are no defenses to a no-fault divorce and each part of the divorce will always be a compromise by both sides. The second aspect is that the award of fees is entirely discretionary, meaning the judge gets to decide if any fees are shifted.
Determining when and if a court will award attorney’s fees is a difficult task. This is because the trial judge is granted broad discretion in deciding what fees—if any—he or she will award to a spouse. Further, the decision of the trial court will rarely be undone if appealed. In Dunn v. Dunn, the Kansas Court of Appeals laid out some typical considerations it found relevant to an award of attorney’s fees. First, the financial means of each spouse should be considered. If both spouses have roughly equal incomes, the court is less likely to find shifting fees appropriate. Remember, the party that is required to pay the other spouse’s attorney’s fees also owes attorney’s fees of his or her own. In the context of divorce, this means one individual is going to be taxed with a hefty fee and the court will not assign such payments lightly. Second, the behavior of the spouses is relevant. This includes martial misconduct to a small extent, but mostly actions during the divorce proceedings. For example, a spouse that uses the litigation as a weapon is likely to have fees shifted. Finally, the overall circumstances of the situation may also be considered. These factors are admittedly vague, but that again goes to the overwhelming freedom a trial court has in determining if fees should be awarded.
Amount Of Fees
The amount of attorney’s fees awarded is a two-part question. First, the court must determine how much the attorney’s time is worth. It may be surprising, but the court will not simply apply the fee that the attorney has been charging his or her client throughout the litigation. Instead, the court will determine what a “reasonable fee” for that attorney’s services is. As noted in re Marriage of Langley, the court looks to several factors to determine this amount. These factors include the difficulty of the case, what other cases the lawyer had to give up to litigate the divorce, the average fee for the area, and the experience of the attorney. Looking to these factors, the court will determine what a reasonable fee for the services of the attorney are.
The next step is determining how much of the attorney’s time—and thus fee—should be shifted. The court will not automatically require the full fees for one spouse’s attorney be shifted. In fact, it would be a very extreme and rare case in which this happens. Instead, the court will look at the same facts it used in deciding to award fees and make a decision as to what services the other spouse should pay for. The court may also choose to simply discount the full attorney fee when the primarily reason for awarding fees is the financial difference in spouses. This would result in each party paying part of the attorney’s fees for the financially struggling spouse.
Other Limitations And Considerations On Attorney’s Fees
Ethical rules also pose limitations on how an attorney can collect fees. In other types of litigation, attorneys will often represent clients on a contingency fee basis. This means that the attorney simply collects its fees from what the client collects, or nothing if the client doesn’t prevail. However, Kansas Rule of Professional Conduct 1.5(f) prevents an attorney from collecting a contingency fee for a family law matter such as a divorce. This means that the lawyer cannot collect his or her fees from the property settlement or alimony awarded in the divorce proceeding. This requirement, plus the highly unpredictable nature of attorney’s fees, means that a client can’t rely on an award of attorney fees in arranging to pay for an attorney’s services.
The payment of attorney’s fees is difficult to predict in divorce cases. The judge will have incredible freedom in determining what attorney’s fees, if any, are awarded. An experienced attorney will have the insight and knowledge concerning whether your divorce is likely to support an award of attorney’s fees. That experience also allows the attorney to predict what each judge will do when awarding these fees. If you have questions about getting a divorce or other family law matter please feel free to contact the experienced Johnson County divorce lawyers at Roth Davies.
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