Contested divorces can be very troublesome and time-consuming, spouses can argue and fight over everything from alimony and child custody to who pays the child’s college tuition. In addition to that, the attorney’s fees tend to get skyrocketed quickly all of a sudden. Monthly legal invoices are the final nail in the coffin, ending the relationship indefinitely. Then, one spouse starts to ask the other to pay both side’s divorce-related legal fees and the problem would be settled by lawyers on both sides.
Who Pays the Attorney’s Fees?
In normal circumstances, each party is responsible for their own attorney’s fees in Massachusetts court cases. However, if you have no access to money or there is a large income gap between you and your partner, you can file a motion called “pendente lite” for attorney fees. Pendente lite is a latin term meaning awaiting the litigation. That means a judge has the authority to use your share of the marital assets to pay your attorney fees in advance.
How Often do Massachusetts Probate and Family Court Judges Exercise Their Power to Order and Fees and Costs?
It is surprising to see that judges are often reluctant to exercise these powers even if they have the authority to do so. Massachusetts Probate and Family Court judges consistently reject motions for attorneys fees “pendente lite”, even when one party is obviously wealthier than the other. It is unclear why Massachusetts probate court judges often refuse the motion of “pendente lite”. However, there are a few reasons for why this is happening:
- In a contested divorce, the parties tend to appear before the same judge from the beginning to the end and the judge has to think carefully about the future effects of an award for fees.
- The order for fees are seen as a “rewarding” litigation and would like to avoid the fear of the recipient return to court quickly to resolve other matters.
- If the wealthier party is paying the fees for the less wealthy party, the case duration might be extended while if the poorer party pays for their own attorney fees, he or she might be more willing to come to a settlement.
Overall, although under the G. L. c. 215, § 45, judges have the authority to exercise the power to order a party to pay all the legal fees, yet it is rare that they exercise this power.
To learn more about contested divorce or other family law matter, contact Attorney Andrew H.P. Norton in the Bridgewater, MA area and Plymouth County at (508) 427-5700 or fill out an contact form to set up a free and in-depth consultation.