Under normal circumstances, parties seeking a divorce are each responsible to pay for their own lawyers. While free legal clinics and pro bono representation may be available, middle class people and the wealthy seek the best lawyers they can afford.  When it comes to fighting for their rights on custody, finances, and property/debt division, people can’t afford to take chances. In New Jersey divorce cases, there is an additional factor.  At the end of the proverbial day, to level the playing field between two parties, one of whom is able to afford top-notch legal representation and the other is not, the law considers each party’s means and conduct to determine who should pay for the transaction costs.

When are parties forced to pay for their ex’s legal fees and costs?

Despite the general pay-your-own-way rule, parties can be compelled to pay for their spouses’ legal fees and costs in a divorce case. Under the Rules of Court, there are many factors to determine whether legal fees and costs will be assessed against the other party, including:

• The parties’ financial circumstances and their ability to pay their own legal fees and costs;
• The parties’ good faith and reasonableness in positions advanced, both before and during trial;
• The extent of each side’s fees in the current action and any fees previously paid or awarded; and
• The results obtained and the extent to which fees/costs were incurred to enforce existing orders.

Leveling the playing field

Without such protections, a spouse with considerable family wealth or pre-marital assets could pursue a war of financial attrition, waiting until their ex runs out of funds and succumbs to the advantaged party’s will. The goal of the New Jersey Family Court is to give effect to the best interests of children and minimize the harm to divorcing spouses.  It would be inimical to those goals to permit individuals with far greater spending power to strong-arm their way to the outcomes.

Bad faith conduct comes with a price

While the Rules of Court list nine criteria to determine whether awarding attorneys’ fees and costs is appropriate, the most persuasive factor is generally unreasonableness on the part of spouses. On a practical level, parties who engage in dilatory tactics or spike the other party’s costs for frivolous or spite reasons may end up shelling out for it. Similarly, refusing to adhere to court orders regarding support or children is the type of bad faith conduct for which an award of attorneys’ fees and costs may be warranted.

Conclusion

If you or someone you know might have questions or concerns about a current or anticipated family law problem, please call us to begin a conversation.  We will review the facts, advise you as to the relevant law, and help you plan your next steps, within the bounds of law and ethics.  Please tell us how we may be of help.  We will strive to assist you.