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Who Pays the Attorney Fees in a Divorce?

Posted by Richard C. Perry | Jul 16, 2021 | 0 Comments

How do I Pay for My Divorce If I Don't Work? 

As an Alabama divorce and family lawyer, we are often asked who has to pay the attorney fees during or after a divorce. This question is often asked by women who are stay-at-home mothers who have no income outside the family. Alabama courts have judicial discretion to award attorney fees to spouses who cannot otherwise pay for their attorneys. The basis for a trial court to grant attorney fees in a divorce or related action if found in Alabama Code 30-2-54. 

The Statute provides: 

In all actions for divorce or for the recovery of alimony, maintenance, or support in which a judgment of divorce has been issued or is pending, and contempt of court citation has been made by the court against either party, the court may, in its discretion, upon application, therefore, award a reasonable sum as fees or compensation of the attorney or attorneys representing both parties. 

This code section has also been held to allow attorney's fees in Pendente Lite hearings, modification proceedings, and contempt actions. Interestingly, the court may also award attorney fees to the party defending against an action brought by the other party. The Litigation Accountability Act has also been applied in post-divorce modification hearings. Payments may be awarded when one party causes unnecessary delay and a needless increase in the cost of litigation. If attorney fees are to be granted, the court must specifically require the court to set forth the reasons for such award. Fees can also be awarded in appellate matters if the appeal filings were frivolous or brought for delay purposes. 

When Can an Attorney Fee be Awarded in an Alabama Divorce?

Before an attorney's fee can be awarded, it must be evident to the court that there is a need on the part of the recipient and that the opposing spouse ordered to pay the fee can do so. If the party ordered to pay the fee cannot pay the attorney's fees, the trial court's ruling may be overturned on appeal. Alabama courts have enumerated several considerations to consider when determining to award an attorney fee, including, but not limited to the following:

  • The husband or wife's misconduct, or lack thereof
  • The husband or wife's income and financial ability to pay lawyer fees
  • The parties ability to pay their fees
  • The parties good faith in asserting their case or presenting a defense
  • The length of the trial
  • Whether or not custody was involved in the divorce proceedings
  • The time required to prepare the case for trial
  • The services rendered by the attorney seeking legal fees

The court was broad discretion in awarding attorney fees. The decision to award attorney fees is vested in the court's control which will not be reversed on appeal except for gross abuse or palpable error. Hefty attorney fees have been awarded many times in divorce proceedings. Likewise, in Alabama, attorney fees have been awarded to a spouse whose fees were initially paid by the spouse's family. Serious misconduct during the marriage, such as adultery, could prevent an award of attorney's fees. However, such misconduct is not an absolute bar to the award of legal fees. 

How Do Alabama Courts Set the Amount of Attorney's Fees?

Once a court has decided to award attorney's fees during a divorce proceeding, the issue becomes the amount of the award fee. Alabama courts will look to the following circumstances in making an attorney fee award to a divorcing spouse:

  • The nature and value of the attorney' employment
  • The learning, skill, and labor necessary during the divorce
  • The time consumed in the divorce
  • The professional ability, experience, and reputation of the attorney performing the legal services
  • The success achieved by the attorney
  • The standard fee charges in similar cases in the particular jurisdiction
  • Evidence of the reasonableness of the attorney fee
  • The court's knowledge and experience as to the value of the services performed by the lawyer
  • The earning capacity of the parties

Must Your Attorney Prove the Attorney Fees are Reasonable? 

Alabama courts have held that there is no absolute requirement for a requesting party to prove the reasonable values of an attorney's services. The authority of a court to grant fees in such circumstances is different from whether the court should award a fee under the circumstances at all. Your attorney should present proof of the attorney's value, time, and effort during the divorce proceeding, or the court is under no responsibility or duty to award an attorney fee. There is no testimony offered on how much an attorney fee should be. The court still has discretion even without proof of reasonableness. The court has large amounts of control in awarding an attorney fee during a divorce proceeding. When a case is submitted without testimony as to a reasonable amount for a fee, the court's decision to award or not award a fee will not be disturbed on appeal unless the attorney fee award "shocks the conscience." 

Hire an Experienced Huntsville Divorce Lawyer

Our lawyers have decades of experience helping thousands of clients in divorce proceedings throughout Alabama in Huntsville, Madison, Morgan, and Limestone Counties. If you need help paying for your divorce, we may get your spouse to pay your legal fees. We have experience in divorce and custody cases, child custody modifications, military divorce, and much more. Please get in touch with us here for a free consultation, or call us at 256-692-5333. Please be sure also to review our delighted client testimonials.

About the Author

Richard C. Perry

 The Huntsville, Alabama Divorce Lawyers of our law firm have decades of experience helping clients through difficult times in divorce proceedings. Our lawyers regularly help clients through contested and uncontested Alabama divorce cases. We have helped our neighbors in Alabama successfully na...


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