WILL MY SPOUSE HAVE TO PAY MY ATTORNEYS FEES?
The American body of law, like most American institutions, is primarily derived from British law that existed in the 18th Century. However, when America won its independence from British rule, it sought to assert its independence in every practical way. An example of this is that American racetracks began running races counterclockwise because British racetracks ran clockwise. Another example is the “American Rule,” which governs how attorneys are paid. Under the American Rule, each party is responsible for paying his or her own attorney, regardless of whether they win or lose. In contrast, the British Rule required the prevailing party to pay the attorney’s fees for both sides. Below is an overview of issues concerning attorneys’ fees in Kansas divorce proceedings.
American Rule in the Context of Divorce
The default rule in every state, including Kansas, remains the American Rule, under which each side pays its own attorney's fees. Occasionally, where there is a statute, the other side will be responsible for paying the other party’s attorney fees. In the context of divorce, Kansas has a statute in § 23-2715. However, this statute allows the court to award costs and attorney fees “to either party as justice and equity require.” As the court noted in the case of In re Marriage of Langley, there are two things that make this statute unusual. First, the fees are not awarded only to the prevailing party; they can be awarded to either party. While unusual, this makes sense in the context of divorce because it avoids the difficulty of determining which party prevails. In a no-fault divorce, there are no defenses, and every part of the proceedings is a compromise by both sides. Second, the awarding of fees is a discretionary decision made by the judge, meaning the judge will decide whether any fees are shifted.
Determining if and when to award attorney’s fees is a challenging task. The trial judge has broad discretion in making this decision, and the trial court's decision is rarely overturned on appeal. In Dunn v. Dunn, the Kansas Court of Appeals laid out some factors to consider when determining whether it is relevant to award attorney’s fees. First, the court should consider each spouse's financial means. If both spouses have roughly equal incomes, the court will be less likely to find that shifting fees is appropriate. The party that is required to pay the other spouse’s attorney’s fees still has to pay the attorney’s fees of his or her own attorney. In the context of divorce, this means that one individual will be charged a hefty fee, and the court will not assign fees lightly. Second, the court must consider the spouses' behavior. This can include marital misconduct to an extent, but the court mostly looks to actions taken during the divorce proceedings. For example, a spouse who uses litigation as a weapon is likely to have fees shifted. Third, the court must consider the overall circumstances of the situation. These factors are vague, but they aid the trial court in its overwhelming discretion when determining if fees should be awarded.
Amount of Fees
Calculating the amount of attorney’s fees awarded is a two-part determination. First, the court will determine how much the attorney’s time is worth, rather than applying the cost that the attorney has been charging his or her client during the litigation. Instead, the court will determine what a “reasonable fee” is for that attorney’s services, based on several factors, as noted in in re Marriage of Langley. These factors include the difficulty of the case, other cases the lawyer had to give up on litigating the divorce, the average attorney fee in the area, and the attorney's experience. After considering these factors, the court will determine a reasonable fee for the attorney's services.
The second determination the court must make is to decide how much of the attorney’s fee should be shifted. The court will not automatically require the full fees for one spouse’s attorney to be moved, and in fact will rarely require them. Instead, the court will use the same factors it used to determine fees to determine what services the other spouse should pay for. In cases where the primary reason for awarding fees is the financial difference in spouses, the court may choose to discount the full attorney fee and have each party pay part of the attorney’s fees for the financially struggling spouse.
Other Limitations and Considerations on Attorney’s Fees
Ethical rules affect how an attorney can collect fees. In other types of litigation, attorneys often represent clients on a contingency fee basis, collecting their fees from what the client collects, or nothing if the client does not prevail. Under Kansas Rule of Professional Conduct 1.5(f), an attorney is prohibited from collecting a contingency fee for a family law matter, such as divorce. This prevents the attorney from collecting fees from the property settlement or any alimony awarded in the divorce proceeding. This, combined with the unpredictable nature of attorney’s fees, means that the client cannot rely on an award of attorney fees and must arrange to pay for an attorney’s services.
The payment of attorney’s fees is nearly impossible to predict in divorce proceedings. The judge will have immense discretion in determining what attorney’s fees, if any, are awarded. An experienced attorney will have the knowledge and insight needed to predict whether your divorce is likely to support an award of attorney’s fees and what the judge will likely do when awarding these fees.
What factors does the court consider when determining if it will award attorney’s fees in a divorce proceeding?
(Dunn v. Dunn, 595 P.2d 349 (Kan. Ct. App. 1979)
The issue in this case is what factors a court considers when determining if it will award attorney’s fees in a divorce proceeding? In a divorce proceeding, the court will consider each spouse's financial means, behavior, and the overall circumstances when determining whether to award attorney’s fees.
In this case, a couple was divorced, with the husband receiving almost all of the property and the wife receiving an eight-year-old car, household furniture, and $100 monthly alimony for two years. The wife commutes to Wichita five days a week for work, and the record does not show any other assets from which she could pay an award of attorney fees. In the present issue, the wife brought an action seeking a change in custody over the parties’ minor children. The trial court awarded the husband $4,500 in attorney's fees. The wife appealed the decision, arguing that the trial court abused its discretion in the award.
In a divorce proceeding, the court will consider each spouse's financial means, behavior, and the overall circumstances when determining whether to award attorney’s fees. In Kansas, costs and attorney’s fees may be awarded to either party as justice and equity may require, and attorney's fees are allowable in proceedings to modify child custody orders. The Supreme Court of Kansas has held that K.S.A. 60-1610 must be applied in alimony cases by considering the needs of one party and the other party's ability to pay. In this case, based on the record, it appeared that the trial judge awarded attorney's fees at least in part to discourage any further motions for a change of custody by the mother. It was also evident that the trial court did not consider the parties' relative financial ability to pay attorney fees. The court of appeals held that if there is a strong likelihood that the trial judge awarded attorney fees at least in part to discourage future motions for a change of custody, the trial judge abused his discretion in doing so.
The Court of Appeals of Kansas reversed the trial court's decision, finding that the trial judge abused his discretion in awarding attorney fees to the husband. The decision of the trial court is rarely reversed on appeal unless there is an evident abuse of discretion. In this case, the Court of Appeals held that the trial court abused its discretion by considering inappropriate factors in determining whether to award attorney fees. The court held that discouraging future proceedings is not an appropriate factor to consider when determining whether to award attorney fees.
Is it possible to have the “court fees” waived for a divorce proceeding?
(Boddie v. Connecticut, 401 US 371 (1971))
This case explored whether a state can require every resident to pay the fees to obtain a divorce, even if they do not have the financial means to do so. In exploring the issue, the United States Supreme Court concluded that the 14th Amendment forbids a state from requiring people without the financial ability to pay for a divorce to obtain one. This is because the only way to get a divorce is to go through the state, and doing so would violate due process rights. The court analogized the situation to that of a poor criminal defendant who cannot avoid using the court system, and financial restrictions have been removed in such cases.
Gladys Boddie (plaintiff) was a resident of Connecticut. Gladys was a poor individual who received government aid in the form of welfare benefits. Gladys was married and wished to obtain a divorce, but could not do so because of her financial situation. Connecticut had a fee requirement for service of process. This fee requirement prevented those who could not pay it from obtaining a divorce decree. The average fee for a divorce was $60 plus an additional $45 to cover the court costs. Gladys and other poor residents of Connecticut brought suit in federal district court against the State of Connecticut (defendant). The district court found that the statute requiring the fee was constitutional. Gladys appealed to the United States Supreme Court.
Gladys’ argument was based on the idea that Connecticut’s requirement of the payment of fees to bring specific court actions prevented some residents from filing for divorces. Gladys argued that the Connecticut law violated her due process rights, making the required fees unconstitutional.
The United States Supreme Court ruled that a state could not deny residents seeking to obtain a divorce decree solely because they were not able to pay the fees associated with doing so. The Court reasoned that this would violate the residents’ due process rights because individuals cannot divorce themselves without assistance from the state. Connecticut argued that the fee requirement helped prevent frivolous litigation. Connecticut also argued that the fees helped allocate scarce resources. Ultimately, the Court held that the residents’ constitutional rights trump Connecticut's reasons for imposing the required fees.
In sum, due process allows for the fees associated with a divorce action to be waived in extreme financial situations. A state cannot deny an individual access to a divorce proceeding solely because they are unable to pay the fees.