25 Jan I can’t afford this divorce, but my Spouse can …
When it comes to divorce, negotiations can turn to litigation in the blink of an eye, and nasty divorce litigation can run your emotions and your bank account into the ground. Robin Williams said it best, “It’s ripping your heart out through your wallet.” But emotions aside, if you can’t afford to pay lawyers to help you out against an overly-litigious ex, the outcome is, unfortunately, likely to be weighed in your ex’s favor. But being the spouse with less of a bank account shouldn’t prevent you from a fair divorce – after all, the marital estate, likely including those bank accounts, is supposed to get divided equitably.
In cases where we represent the “non-monied” spouse – or the one without access to marital funds– we work as hard as possible to prevent that disparity from materially affecting the outcome of their divorce. One great tool to achieve this goal under Colorado law is commonly referred to as Prospective Award of Attorney Fees. In Colorado, as well as most other States that have adopted the Uniform Dissolution of Marriage Act (the “UDMA”), there is a section of the divorce laws that permits the Court to “order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any [family law case] and for attorney’s fees,” after considering both parties’ comparative financial circumstances. C.R.S. § 14-10-119. This law allows the court to not only award attorney fees at the end of the case, but also to order attorney fees in anticipation of further litigation or “prospectively”. Essentially, the Court is allowed to order one spouse to pay for both spouses’ attorneys if their respective financial circumstances call for that.
Back in the day, and before the UDMA was a thing, Courts and lawyers called this “suit money”. Sometimes Courts would make such orders in lieu of temporary maintenance or alimony during the pendency of the divorce, but in all cases the principle behind the Court’s authority was pretty simple: spouses fighting out a divorce should be allowed to fight on even ground. Because spouses owe heightened duties to one another (including, for example, fiduciary duties), the judicial system wants to avoid letting one of the spouses litigate the other into financial turmoil.
It’s also worth mentioning that this authority to order attorney fees prospectively is not limited to a full divorce, but also can apply to post-decree litigation, custody battles, or even modifications of spousal or child support.
If you don’t have the right size of wallet to adequately litigate your divorce case – don’t give up. Especially if your spouse or ex-spouse has substantially more access to funds than you do, talk to a lawyer about your options and whether you could pursue prospective attorney fees in your case.