Divorce litigation is expensive. There are no two ways around it. Law firms compensate attorneys well, and even solo attorneys tend to carry significant overhead. Getting the attorney up to speed, discovery, and motion practice all add significant costs. Custody evaluations, financial experts, and trial preparation can quickly make legal fees overwhelming for families. In some cases, one spouse controls most of the marital finances. The other struggles simply to retain counsel or keep up with ongoing litigation costs. It’s even more complicated when one party intentionally causes more work for the other side. They do this as a negotiating tool, driving up cost in the process. These imbalances naturally raise an important question in many Massachusetts divorce cases: can one spouse receive a court order? The order would require the other spouse to contribute toward attorney‘s fees.
Massachusetts law recognizes that meaningful access to the court system is essential. This requires more than simply allowing both parties to appear in court. If one party has substantially greater access to money, assets, or income, the financially disadvantaged spouse may suffer. Without assistance, they may be unable to effectively litigate the case and obtain a fair and reasonable outcome. Attorney‘s fee awards are one mechanism Massachusetts courts use to level the playing field. They promote fairness throughout the litigation process.
Courts do not award attorney’s fees automatically. In Massachusetts, they are more likely to be distributed as an equitable advance. Judges look carefully at the financial circumstances of the parties and the conduct of the litigation. They also consider whether the fees requested are reasonable under the circumstances. In some cases, courts award attorney‘s fees when one spouse clearly has greater financial resources. In others, courts award fees when one party engages in unreasonable litigation conduct. This unnecessarily increases the cost of the case.
Like many issues in family law, attorney’s fees are highly fact-specific. Understanding when fees may be awarded and when they may not can significantly shape litigation strategy. It can also drive settlement negotiations and determine the overall financial impact of the divorce process.
Massachusetts Law on Attorney’s Fees in Divorce Cases
Massachusetts Probate and Family Courts have broad discretion to award attorney’s fees during and after divorce litigation. The primary statutory authority comes from Massachusetts General Laws Chapter 208, Section 38, which permits the court to order one spouse to pay the reasonable attorney’s fees and litigation expenses of the other spouse. The statute exists largely to ensure both parties have a fair opportunity to participate in litigation. This applies regardless of financial imbalance. Mass. Gen. Laws ch. 208, § 38.
In practice, courts frequently evaluate whether one spouse has substantially greater access to income, liquidity, or marital assets. A spouse who controls the family business or earns significantly more money may face a court order. That order may require them to contribute toward the other spouse’s legal fees. This ensures the case can proceed fairly. The goal is generally not punishment. The focus often centers on ensuring financial pressure does not push one party into an unfair settlement. This happens simply because they cannot afford representation. The idea is to put the parties on an equal playing field. This allows them to work on the same level of sophistication and knowledge. Ultimately, this helps reach a fair and equitable outcome.
Attorney’s fees commonly arise very early in divorce cases through temporary motions. A financially disadvantaged spouse may request an advance retainer payment or interim attorney’s fees while the case is pending. They may also request expert witness contributions or reimbursement for litigation expenses during this time. Courts often consider factors such as income disparity, access to marital assets, and earning capacity. They also weigh support obligations and the overall equities of the case when deciding these requests. Massachusetts appellate courts have repeatedly recognized the importance of ensuring meaningful access to counsel during divorce litigation. See Cooper v. Cooper, 62 Mass. App. Ct. 130 (2004).
Attorney’s fees may also become an issue at the conclusion of the case after trial or settlement. At that stage, judges often evaluate not only the parties’ financial circumstances but also how the litigation was conducted. Courts may consider whether one party unnecessarily prolonged the litigation or refused reasonable settlement opportunities. They may also consider whether a party concealed information or violated court orders. Courts further examine whether a party engaged in conduct that significantly increased the cost of the case. Massachusetts courts have long recognized that Probate and Family Court judges possess broad discretion when making attorney’s fee determinations. See Moriarty v. Stone, 41 Mass. App. Ct. 151 (1996).
In some situations, attorney’s fees are awarded not because of financial disparity, but because of litigation misconduct. Under Massachusetts Rule of Domestic Relations Procedure 37, courts may impose sanctions, including attorney’s fees, for discovery violations and other forms of noncompliance. Divorce litigation depends heavily on complete and accurate financial disclosure, and courts take those obligations seriously. When one party refuses to produce records, ignores discovery deadlines, or repeatedly violates court orders, fee-shifting sanctions often become a practical tool for the court to enforce compliance. Mass. R. Dom. Rel. P. 37.
Attorney’s fees are also common in contempt proceedings. If one party violates a support order, parenting order, alimony obligation, or property division judgment, the other party may incur substantial legal fees simply trying to enforce an existing court order. In those situations, Massachusetts courts frequently award attorney’s fees to the prevailing party, particularly where the violation was clear and willful. See Kennedy v. Kennedy, 17 Mass. App. Ct. 308 (1983).
Custody litigation can create especially significant fee disputes because the emotional intensity of parenting cases often drives prolonged and expensive litigation. Courts are sensitive to situations where one parent attempts to financially exhaust the other through excessive motions, unnecessary hearings, or unreasonable litigation tactics. While judges understand that custody disputes are emotionally charged, they also expect parties to litigate reasonably and focus on the best interests of the children rather than using litigation itself as a weapon.
How Attorney’s Fees Issues Arise in Real Life
One of the most common scenarios involves a significant income disparity between spouses. Imagine a marriage in which one spouse earns several hundred thousand dollars annually while the other spouse spent years out of the workforce caring for children and managing the household. The financially dependent spouse may have little access to liquid funds after separation, even though substantial marital assets exist overall. In that situation, the court may order the higher-earning spouse to contribute toward attorney’s fees so that both parties can participate meaningfully in the divorce process.
Attorney’s fees also commonly arise when one party engages in discovery abuse. Financial disclosure is central to Massachusetts divorce litigation because judges cannot fairly divide assets or determine support obligations without accurate financial information. If one spouse repeatedly refuses to produce bank statements, business records, tax returns, or investment account information, the other party may be forced to spend substantial money filing motions to compel and attending additional hearings. Courts often respond to this type of conduct by ordering the noncompliant party to reimburse some or all of the attorney’s fees associated with enforcing discovery compliance.
Post-divorce litigation sometimes creates additional attorney’s fee issues. For example, if a former spouse stops paying alimony or child support despite having the ability to do so, the receiving party may need to file a complaint for contempt simply to enforce an existing court order. Those enforcement proceedings can become expensive quickly, particularly if repeated court appearances are required. Massachusetts courts regularly award attorney’s fees in successful contempt actions because the prevailing party should not necessarily bear the financial burden of forcing the other side to comply with obligations that already existed.
Even custody disputes, which have no equitable division from which to advance fees, can generate attorney’s fee exposure. In high-conflict parenting cases, one parent may file repeated emergency motions, make unsupported allegations, or unnecessarily prolong litigation regarding parenting schedules or decision-making authority. Judges are often careful to distinguish between legitimate parenting concerns and litigation tactics designed primarily to increase pressure or cost. When the court concludes that a party has litigated unreasonably, attorney’s fee awards sometimes follow.
Fictional Fact Pattern and Legal Analysis
Sarah and Michael had been married for fourteen years and had two children together. Michael owned a successful construction company and earned approximately $600,000 annually, while Sarah worked only part-time during the marriage because she had primarily stayed home caring for the children. When Sarah filed for divorce, she quickly realized that Michael controlled nearly all of the marital liquidity and had already retained aggressive litigation counsel.
Within the first weeks of the case, Sarah’s attorney filed a motion seeking temporary attorney’s fees pursuant to M.G.L. c. 208, § 38. The motion argued that Sarah lacked meaningful access to marital funds and could not effectively litigate the case without financial assistance. The court reviewed the parties’ Financial Statements, earning capacities, monthly expenses, and access to marital accounts before ultimately ordering Michael to contribute $20,000 toward Sarah’s legal fees in the form of an equitable distribution advance.
As the litigation progressed, discovery disputes began to emerge. Michael repeatedly failed to produce business accounting records, delayed responding to document requests, and ignored several discovery deadlines. Sarah was forced to file motions to compel discovery and attend additional hearings simply to obtain financial records necessary to value the business and determine Michael’s true income.
The court eventually concluded that Michael’s conduct had unnecessarily increased the cost of the litigation. Pursuant to Rule 37, the judge ordered Michael to pay Sarah’s additional attorney’s fees associated with the discovery enforcement efforts, not as an advance but as a sanction against Michael. By the time the case reached trial, the court had become increasingly concerned with the financial disparity between the parties. It was also troubled by Michael’s overall litigation conduct and lack of cooperation throughout the case.
At trial, the judge ultimately considered the parties’ respective financial circumstances, the complexity of the business valuation issues, Michael’s obstruction during discovery, and the significant disparity in earning capacity between the spouses. In addition to entering orders regarding custody, support, and property division, the court awarded Sarah additional attorney’s fees as part of the final judgment. The fee award reflected both the financial realities of the case and the court’s conclusion that Michael’s litigation conduct had substantially increased the overall cost of the proceedings.
Frequently Asked Questions
Can my spouse be ordered to pay my attorney’s fees in a Massachusetts divorce?
Yes. Massachusetts courts have authority under M.G.L. c. 208, § 38 to order one spouse to contribute toward the other spouse’s reasonable attorney’s fees and litigation expenses depending on the facts of the case. This most often comes in the form of an advance of the marital estate, essentially making it available to the party not in possession, thereby ensuring each party has an attorney.
Are attorney’s fees automatically awarded in divorce cases?
No. Attorney’s fee awards are discretionary, meaning the judge evaluates the specific circumstances of the case before deciding whether a contribution is appropriate.
Does income disparity matter?
Absolutely. One of the most common reasons courts award attorney’s fees is because one spouse has substantially greater access to income, assets, or liquidity than the other.
Can attorney’s fees be awarded because of bad litigation behavior?
Yes. Courts may award attorney’s fees where a party engages in discovery abuse, violates court orders, conceals assets, or otherwise unnecessarily increases the cost of litigation.
Are attorney’s fees available in custody disputes?
They can be. Courts sometimes award fees in high-conflict parenting litigation where one party litigates unreasonably or uses litigation tactics that unnecessarily increase costs.
Can attorney’s fees be awarded after the divorce is final?
Yes. Attorney’s fees are frequently awarded in post-divorce contempt and modification actions, particularly where one party is forced to return to court to enforce existing orders or compel reasonable and permissible discovery responses.
Final Thoughts
Attorney’s fees are often one of the most practical and important issues in Massachusetts divorce litigation. Legal fees can quickly become overwhelming, especially in cases involving business interests, custody disputes, substantial discovery, or complex financial issues. When one spouse has significantly greater access to money or when litigation conduct becomes unreasonable, courts have broad authority to shift some of those financial burdens through attorney’s fee awards.
At the same time, attorney’s fees are never automatic. Judges look carefully at the financial realities of the case, the conduct of the parties, and whether the fees requested are reasonable under the circumstances. Courts are generally trying to balance fairness, access to justice, and efficient resolution of the litigation rather than simply punishing one side or rewarding the other.
Because fee awards can materially affect litigation strategy and settlement leverage, parties should carefully document litigation expenses, financial circumstances, discovery disputes, and any conduct that unnecessarily increases the cost of the case. In many situations, the attorney’s fee issue itself becomes an important component of the broader settlement and trial strategy throughout the divorce process.
About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.Damian Turco’s Bio Page | More Blogs from Damian Turco