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 whether he can ask the Court to order Nina to help him pay some of those counsel fees, finding her responsible and ordering that the party responsible pays attorneys fees in the case.

Attorneys’ fees may be paid by a client’s spouse under two circumstances, generally: by agreement, or by court order.

A party may agree to pay the other party’s attorney fees, perhaps as part of the order of distribution of marital property. As with any other contract between the parties, the Court will look at this agreement to ensure it is fair and equitable. It is essential for the attorney involved to ensure that he or she is not jeopardizing or bargaining away any key rights of the client by accepting the provision of counsel fees to be paid by the other party. Moreover, rules of professional responsibility may be implicated: after all, the attorney is technically not supposed to accept payment from anyone other than his or her client, unless the client consents after full disclosure. In order to avoid any appearance of impropriety or influence by others, the attorney involved must comport with relevant ethics rules and considerations.

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]

Typically, the appellate courts will defer to the Probate and Family Court’s award—that is to say, unless there is evidence that the award was egregious or grossly inadequate, the appellate courts typically won’t disturb it. Some factors considered in this regard include: the time reasonably spent on the case by the attorney; basic factors of need and the financial positions of each spouse; the complexity or difficulty of the work done by the attorney; whether one party has unnecessarily prolonged the litigation, causing the other to incur additional attorney fees; and expert testimony regarding reasonable fees, among many others.

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.