The American body of law, like most American institutions, is largely 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 to run races counterclockwise because the British races ran clockwise. Another examples is with the “American Rule,” which deals with 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 attorney’s fees in Kansas divorce proceedings.

American Rule in Context of Divorce

The default rule in every state, including Kansas, is still the American Rule, with each side paying his or her own attorney 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 in re Marriage of Langley, there are two things that make this statute unusual. First, the fees are not just awarded to the prevailing party, but they can be awarded to either party. While unusual, this makes sense in the context of divorce because it avoids the difficulty of having to determine which party prevails in a divorce. 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 that the judge makes, meaning the judge will decide if any fees are shifted.

Determining if and when to award attorney’s fees is an incredibly difficult task. The trial judge is granted broad discretion when making this decision, and the decision of the trial court is rarely undone if appealed. 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 the financial means of each spouse. 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 given a hefty fee, and, therefore, the court will not assign fees lightly. Second, the court must look at the behaviors of the spouses. This can include marital misconduct to an extent, but mostly the court looks towards actions done during the divorce proceedings. For example, a spouse that uses the 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 fee 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 litigating the divorce, the average attorney fee for the area, and the experience of the attorney. After considering these factors, the court will determine what a reasonable fee for the services of the attorney are.

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 be shifted, and, in fact, the court will rarely shift the full fees. 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 his or her fees from what the client collects or nothing if the client does not prevail. Under the Kansas Rule of Professional Conduct 1.5(f), an attorney is prevented from collecting a contingency fee for a family law matter, like divorce. This prevents the attorney from collecting his or her 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.