What is Connecticut’s Law regarding Payment of Legal Fees in a Divorce?
It is typical for people in Westport, Greenwich, and Stamford who are contemplating divorce to have questions regarding how legal fees will be paid. Fairfield County divorce litigants want to know not only how their legal fees will be paid, but also how their spouse’s legal fees will be paid.
Typically, legal fees in Connecticut divorces are paid from assets and/or each party’s income. In other words, it is fairly common for legal fees to be paid out of the assets that the parties have accumulated during the marriage, or, if those assets are insufficient, for income earned by one or both parties to be used toward legal fees. To the extent that assets and income are spent on legal fees during the divorce, those monies are not available for distribution between the parties at the end of the divorce case. What this means for divorce litigants in Connecticut is that, essentially, each party is sharing in the legal fees incurred by his or her spouse. As a result, in theory each party should be incentivized to ensure that the overall legal fees spent are minimal in order to preserve the assets and income for the family.
Are There Exceptions to the Payment of Legal Fees from Marital Assets and Income?
There can be exceptions to the general notion that the parties share in the overall legal fee expenditures in a Connecticut divorce. For example, sometimes parties will agree or a Court will order that one party should bear a greater burden for the legal fees he or she has incurred. The reason for an uneven distribution of the overall legal fee expenditures can be that one party egregiously outspent the other party to an unreasonable extent or that it is equitable for one party to bear a greater burden as part of the overall financial orders. Such an agreement or order will usually state that the party in question will be responsible for paying from his or her share of the assets any legal fees owed to his or her attorney but not yet paid, with no contribution from the other spouse. Or, if the legal fees have already been paid, the agreement or order will state that the other spouse receives a credit in the overall asset distribution for part of the legal fees spent by the party in question.
Another example of an exception to the general concept of paying legal fees “off the top” of the marital estate is if a party has violated a Court order or engaged in litigation misconduct during the pendency of the case and, as a result, is ordered by a Court to pay the other party’s legal fees incurred in having to address the violation or misconduct.
If the parties have a Prenuptial or Postnuptial Agreement, that agreement will often address how legal fees will be paid in the event of divorce. It is not uncommon for those agreements to state that each party will be responsible for the payment of his or her legal fees incurred during the divorce from his or her share of the assets.
How Can a Party Pay Legal Fees if He or She Does Not Have Access to Marital Assets and Income?
If a party does not have access to assets or income to pay his or her legal fees, he or she (or a lawyer on his or her behalf) can file a Motion for Counsel Fees to obtain a Court order for fees. Connecticut General Statutes Section 46b-62 states that, in a divorce case, the court has the authority to order either party to pay the reasonable legal fees of the other party in accordance with each party’s financial abilities and the criteria found in General Statutes Section 46b-82, which is Connecticut’s alimony statute. These criteria include the age and health of the parties, each party’s occupation, the amount and sources of income each party has, each party’s earning capacity, and the estate and needs of a party. Under Connecticut law, the Court has the authority to order one party to pay legal fees even if the other party has sufficient liquid assets in his or her name, “if the failure to do so would substantially undermine the other financial awards” in the case. Maguire v. Maguire, 222 Conn. 32, 44 (1992).
Broder Orland Murray & DeMattie LLC is a Westport and Greenwich matrimonial law firm. We have experience in dealing with all aspects of Connecticut divorce cases. We encourage people thinking about divorce to schedule a consultation to have their questions answered by an experienced Fairfield County divorce attorney.