Who Pays Attorney Fees in Divorce?

Updated January 5, 2024
13 min read
Who Pays Attorney Fees in Divorce?


When determining who pays for the divorce, it's standard for each party to bear their own attorney expenses. However, you can secure an award of attorney fees if you are a dependent spouse and are concerned about how to get attorney fees paid in divorce. The award is a court order requiring one party to pay the attorney’s expenses to another. 

What To Know About Attorney Fees in a Divorce

In instances where you are the party initiating the divorce proceedings, the question of who pays divorce lawyer fees may become a central concern. Initially, you may need to handle the payment of attorney fees and court filing costs on your own. 

However, once the case makes its way to court, you can petition for an award of attorney fees through your attorney. Depending upon the nature of your case and the financial circumstances of the parties involved, the court may award different types of fees:

“Need-based” fees

Need-based attorney fees are awarded if the court determines that one spouse is financially dependent on the other. To establish a dependency, the court will consider if the spouse seeking an award of attorney fees is: 

  • A stay-at-home parent with little to no income;

  • Eligible for alimony or any other post-separation support; and

  • Without access to finances once held in shared accounts because of the other spouse’s actions. 

When deliberating over who pays for the divorce lawyer, it's important to note that courts generally aim to provide all parties equal opportunity to advocate for their rights during divorce proceedings. To this end, the court awards attorney fees, legal expenses, and any other disbursements necessary for the dependent party to participate in the proceedings.

“Conduct-based” fees

In relation to who pays for divorce fees, another factor that may come into play is the conduct of the divorcing parties. Conduct-based attorney fees are awarded against the party who deliberately complicates and drags out the divorce process to make it expensive for the other party. Grounds for conduct-based costs award include: 

  • The party fails to appear in court or any action done consistently to show a failure to cooperate in the process. 

  • Pursuits of frivolous, vexatious, unreasonable, or meritless claims and litigation that makes the other party incur attorney’s fees to defend the claims. 

Factors That May Affect Who Pays for Attorney Fees in Divorce

As stated earlier, the general rule is that each party pays for its attorney fees. However, there are exceptions to this rule. Courts determine who pays lawyer fees in a divorce by considering:

Income and asset disparity between the spouses

Courts examine the financial status of both parties to determine if there is a substantial income disparity between the two spouses and if one spouse is dependent on the other. To ascertain that a spouse is dependent, the court looks at their disposable income, which is the total income minus necessary living expenses and property owned separately. If the balance is insufficient to support a reasonable standard of living, then the court awards needs-based lawyer fees for divorce and alimony in favor of the dependent spouse. 

Сomplexity of the case and results achieved

In such circumstances, when determining who pays the legal fees in a divorce, the court considers the issues of contention and who is the prevailing party. The prevailing party is the one who wins on the points that made the subject of post-divorce litigation, such as modification of custody, child, and spousal support orders.

The party that loses on such matters may be required to pay the prevailing party’s attorney fees irrespective of their financial capacity. However, in such a case, the court may limit the award of attorney fees to accord with the results achieved, giving regard to: 

  • Experience, skills, and level of effort of the attorney; and 

  • If the attorney worked efficiently towards resolving the matter.

What If You Can’t Pay due To Financial Hardship

You may apply for an award of legal fees for divorce and fail, finding yourself in a situation where you need to pay an attorney but you have no finances. So what can you do? You could: 

  1. Opt for limited-scope representation, where your attorney handles certain aspects of your case while you manage others.

  2. Get free legal advice from a family law clinic administered by a local university.

  3. Look out for legal aid organizations for quality free services.

  4. Discuss strategies for reducing the costs with your attorney.

  5. Ask your attorney to give you a payment plan.

How Are Attorney Fees Calculated?

The cost of divorce isn't just confined to the professional attorney charges, it also encompasses several other direct expenses associated with the case. When we explore the question of who pays the legal fees in a divorce, it's important to bear in mind these costs, which can include:

  • Attorney fees — An attorney will ask for a $3,000 to $5,000 retainer, from which they will deduct the hourly rate of handling your case. The hourly rate will depend on the level of experience of your attorney and usually ranges from $100 – $400 per hour. This is an essential aspect of how divorce lawyers get paid. 

  • Nature of assets — Both parties must divide their assets, such as stocks, mortgages, loans, investments, earnings, or profits acquired during the marriage, fairly and equitably. Assets complicate the divorce because the attorney must determine the contribution of each party to the value of the assets. 

  • Filing fees — These fees are different in all states but cost a minimum of $100 in a state like Wyoming and a maximum of $400 in a state like Alabama. 

  • Child custody evaluation — If a couple cannot agree on a parenting plan, the court will recommend a child custody evaluation. A court-appointed evaluator will charge between $1,000 to $2,500. 

  • Forensic accounts — If you think that your spouse is hiding assets or income, your attorney is likely to advise that you hire a forensic accountant to investigate. The hourly rate will be between $300 and $500, and the amount of time they spend on your case will be dependent on its complexity. 

You and your spouse may opt to avoid the emotionally and financially draining courtroom experience and, instead, mutually agree on who pays the divorce fees and details of your divorce, such as custody and distribution of property. In such a case, you can refer to a reliable vendor to get a legally binding divorce settlement agreement. This document details the terms of your divorce agreed upon by both parties, providing clarity and preventing potential disagreements in the future.

Navigating legal fees with a fee agreement

When navigating the financial landscape of a divorce, having a clear understanding of lawyer fees becomes essential. This is where a comprehensive fee agreement becomes your ally. It slices through any uncertainty, laying out a transparent structure of attorney fees and how they are calculated.

The fee agreement delineates payment terms, including fee schedules, retainer amounts, as well as provisions for dispute resolution. This contract ensures that fees are discussed upfront, monitored, and agreed upon by both the attorney and the client. It cements trust, reduces the chance of disagreements, and ensures you’re not caught off guard by any hidden costs. 

With a signed fee agreement, you’ll confidently embrace the legal proceedings, knowing precisely what you’re footing the bill for. In an already overwhelming situation like a divorce, you’re likely seeking peace of mind.

How To Avoid Paying for Spouse’s Attorney Fees

If there is a substantial income disparity between you and your spouse, it's possible that you may not be able to avoid covering their attorney's fees. Addressing the query of can my spouse make me pay her divorce attorney fees, it’s important to note that the court carefully scrutinizes such requests, evaluating the financial situation of both parties before making a decision.

Understanding who has to pay for the divorce will depend on varying circumstances. In cases where neither spouse is financially dependent on the other, the responsibility of the attorney fees usually defaults to each respective party. However, your conduct during the divorce proceedings could potentially affect this outcome.

  • To ensure that you are not burdened with the other party's attorney’s fees, it is crucial to behave in a manner that encourages settlement and respects the court’s orders. 

  • Avoid any actions that can be interpreted as bad faith, such as non-compliance with court directives, evading essential court appearances, or ignoring discovery requests.  


The cost of a divorce depends on each party’s level of transparency, the nature of assets, and whether the court needs to rule on custody arrangements. The degree of complexity of your circumstances will impact costs. If your case is very complex,  your attorney will spend an extended amount of time on your case or will need to hire an expert. 

Unless you or your spouse is dependent, each person pays for their attorney fees. Yet, you may be the one who pays legal fees in a divorce for yourself and your spouse if the court finds that you deliberately frustrate the divorce process. For a comprehensive understanding and more resources regarding family matters, Lawrina provides a wealth of insightful templates and articles.

Article by
Inna Chumachenko

Inna Chumachenko is the Content Lead at Lawrina. She is responsible for managing all the content found on the blog, guides, and other website pages. Inna has a degree in philology and a vast interest in law. In her role at Lawrina, Inna oversees the content team, establishes collaborations with writers, and curates content from various contributors.

If you have any questions or suggestions regarding the content for Lawrina, please feel free to contact Inna directly via email at i.chumachenko@lawrina.org or connect with her on LinkedIn.