Nina and Noah are undergoing a divorce in the Massachusetts Probate Court. To Noah’s belief, Nina has unnecessarily filed many motions, documents, and other things which lengthened the parties’ case. As a result, Noah has incurred additional attorneys’ fees, which seem to be mounting in their ongoing litigation. Noah wonders if he can ask the Court to order Nina to help pay some counsel fees. He believes she is responsible and should cover some of the attorneys’ fees.
A client’s spouse may pay attorneys’ fees in two situations: through an agreement or by court order.
A party may agree to pay the other party’s attorney fees in the distribution of marital property. The Court will review this agreement to ensure fairness and equity. The attorney must avoid jeopardizing the client’s key rights when accepting fees from the other party. Additionally, rules of professional responsibility may be at stake. The attorney cannot accept payment from anyone but the client without the client’s consent and full disclosure. The attorney must follow relevant ethics rules to avoid any appearance of impropriety or external influence.
Under some circumstances, the Court may also order a party to pay the spouse’s attorney fees. This is based on the notion that in many cases involving family law and domestic relations, counsel fees are a necessary component, and that both parties ought to be playing from a level playing field. The statute at hand says: “The court may require either party to pay into court for the use of the other party during the pendency of the action an amount to enable him to maintain or defend the action, and to pay to him alimony during the pendency of the action.” [1]
A key Massachusetts case on this issue is Hayden v. Hayden, [2] where the trial court ordered the husband to set aside a sum of $3,000 for counsel fees incurred by the wife while defending their divorce action. The Supreme Judicial Court acknowledged that a party may be ordered to pay the other spouse’s counsel fees, but reduced the amount on appeal. The Court held that the standard by which counsel fees ought to be measured is “compensation paid to public officers for services of a similar character” and that fees in such cases are to be awarded on a “conservative basis.” [3]
Appellate courts generally defer to the Probate and Family Court’s award, unless it’s egregious or grossly inadequate. They consider factors like attorney time, financial positions, work complexity, unnecessarily prolonged the litigation, and expert testimony.
If you have any questions about divorce or related domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
[1] Mass. Gen. Laws, ch. 208 s. 17
[2] Hayden v. Hayden, 326 Mass. 587 (1950).
[3] Id., at 596.