It is not at all uncommon for the income of one spouse to outstrip that of another during the course of a marriage. It may be because one has chosen to stay home and take care of the children or maintain the household while the other works. Or, it may just be one party’s career puts them in a higher income bracket than the other. A common concern in these situations is how to pay for representation on par with that retained by the spouse. In other words, can one party be made to fund the representation of the other? The short answer is yes.
Most firms will require some form of retainer payment. There is always work which will need to be done up front and while a firm may ask for a lower retainer in anticipation of future payment, it will most likely require some funds initially rather than go completely out of pocket. Nevertheless, the courts feel it is in the best interest of justice for both parties to be represented equally and when it’s apparent continued representation is beyond the means of one party, a petition for fees can be filed. This petition asks the court for an order requiring one spouse to pay the fees of the other’s attorney. Of course, the court will consider several factors before ordering this. These factors include reasonableness of fees requested, complexity of the litigation involved, and access to funds. Parity is the rule of thumb in these situations – ordering fees to be paid is about keeping representation equal, not writing a blank check.
So, if you’re either considering filing or are in the midst of a divorce and your spouse seems to have the advantage because of representation you cannot afford, consult an attorney and explore your options. The situation may not be as dire as it looks.