In a contested divorce case requests that each person contribute or pay all of the other spouse's attorney's fees are extremely common. In fact, nearly every motion for support, enforcement or other divorce related issues is accompanied by a request for an "award of attorney's fees". Judges see requests all day long from both sides so what are the factors that make it more or less likely to be granted by the judge?
While there are many factors that are part of the decision making process the two that have the most weight on the justice scales are the following:
1. Is there a significant difference in the income, assets or resources of one party compared to the other? So if one person makes $250,000/yr and the other makes $65,000/yr the court is more likely to award attorney's fees to the lower income spouse so that they have funds in which to obtain and continue their legal representation. Even if incomes are similar if one person has family advancing legal fees and the retainer payment that will be considered by the court as well. Just because there are marital savings to which both sides have access, that by itself may not matter as parties are not required to spend their future equitable distribution to pay their attorney during the case.
2. Is the need for attorney's fees increased or "exacerbated" by the conduct of the other side? If one person is violating court orders, not complying with discovery demands, not paying court ordered support, failing to disclose assets, not returning or making the children accessible to the other parent, involving the children in the litigation then the court is more likely to help the person perceived as the "victim" of scorched earth type litigation.
Lurking on the sidelines is also how close or far away is the case to a trial date. If a trial date has been set, some judges will not decide a pending application and instead will "refer the issue to the trial court". This can be for many reasons (more than can be discussed here) however it is very frustrating to the person seeking fees as they need to be able to pay their attorney for the upcoming trial.
Judges can also use the granting or denying of attorney's fees as not so subtle messaging to the litigants that they need to settle their differences and not assume that the judge will make either person pay for the other.
Experienced matrimonial attorneys will know what documents and support are needed for a request for attorney's fees including the retainer, Statement Of Client's Rights, itemized billing records, client statement of net worth, disclosure of sums paid, monies owed and the work to yet be performed and why the work is necessary.