Friday, November 5, 2010

ATTORNEY FEE AWARDS – Restoring the Balance of Power

If you are involved in a divorce and/or custody case and are afraid that you don’t have the financial resources to stand up and fight for your rights, here’s the good news -- Attorney Fee Awards, under Arizona law, are the great equalizer.

It is not uncommon, in a divorce or custody case, for one party to have a much higher earning capacity than the other party.  Sometimes the party with the greater earning ability will use that power as a hammer, bullying the poorer party with threats or making her/him spend money on litigation until those resources are exhausted.  “You don’t have the money to fight me, so you might as well take what I’m offering.”  That's a familiar refrain in Family Court cases.  But know this:  If you are the party with the lesser resources in a divorce or custody matter, you do not have to allow yourself to be “steamrolled.”  Arizona has laws that can help you level the playing-field, so that you can assert your legal rights.

Arizona Revised Statutes, Section 25-324 provides that “The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceeding, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending (the litigation).”

What this means is that the judge can force the party with the greater resources to pay the poorer party a reasonable amount to cover his/her attorney fees and litigation expenses.  The poorer party can file a motion for an award of attorney fees at the beginning of the case, or at any other stage of the proceeding.  It can be done more than once, if necessary.  The judge will set a hearing date and the party will be able come into court to explain why she or he is in need of help paying attorney fees.  If there is a significant disparity of income or resources between the parties, or if one party has been bullying the other or acting unreasonably, then the judge has the authority to make an attorney fee award.

Another statute, A.R.S., Section 403.08, provides that “(A) In a proceeding regarding sole custody or joint custody, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing; (B) If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.”

This statute is similar to A.R.S., 25-324 but applies to non-divorce cases involving custody, such as Modification of Custody actions, Paternity, Grandparent, and Non-Parent custody matters, etc.

The Arizona Courts have explained that the purpose of the statutes allowing the court to make an attorney fee award is to provide a remedy for the party least able to pay; and to insure that the poorer party has the means to litigate the action free of the other's hold on the family finances.

By making an award of attorney fees in a divorce and/or custody case, the court can place the parties on a level playing-field and restore the balance of power.

If you are in need of help in your divorce or custody case, contact our office today.  You can call us at 602-383-3610 or email us through our web site at http://www.garyfranklaw.com/.