Can the Court Order My Ex-spouse to Pay My Attorney Fees?
Like many legal matters, divorce has the potential to be expensive, especially when factors like fault, child support, and alimony come into play. While some couples proceed through the divorce process without an attorney, it is often advisable to seek legal guidance, especially if you have children or a sizeable amount of assets. Not only can an attorney help you assess your legal options, but they can also handle paperwork, negotiations, and other related elements to ensure nothing is missed or filed incorrectly.
Depending on your financial circumstances and the nature of your divorce, the court may order your ex-spouse to pay your attorney fees. If you have questions about your legal rights and options when filing or responding to a divorce petition, New Mexico Financial & Family Law is here to help. All you need to do is reach out to a New Mexico divorce attorney.
Understanding Attorney Fees for Divorce Petitions
Attorney fees vary significantly from case to case. To start, you will likely have an initial consultation fee. If you choose to hire a lawyer, you may also be billed an initial retainer fee to ensure your lawyer has the time and resources for your case.
Most family law attorneys provide services at an hourly rate. Those rates vary from firm to firm, with more experienced attorneys typically having higher rates because of their comprehensive understanding of the process. Hourly rates cover services like drafting letters, memos, motions, and petitions, research, phone calls, other types of communication, and time spent in the courtroom.
In addition to the hourly rate, other factors can increase attorney fees, such as consulting outside sources or experts like child custody evaluators, tax advisors, and real estate appraisers. There may also be fees based on the following:
- The complexity of the case
- The character and nature of the litigation
- How vital the litigation is
- Other customary legal fees
The statutes in New Mexico have both divorce by fault of one party (cruel and inhuman treatment, adultery, or abandonment). As a practical matter, no one seeks a fault based divorce because no-fault (incompatibility) does not need any proof, and it exists whenever any of the fault reasons would exist.
While every divorce petition is different, there are certain fees you can expect. If you are concerned about the cost of hiring an attorney, schedule a consultation to review your situation and get an idea of what to prepare for.
Who Pays Attorney Fees in Divorce in New Mexico?
Generally, New Mexico courts order the petitioner and the recipient to pay their own attorney fees. Fees are only recoverable when authorized by state law, court rule, or an agreement between the two parties. Two circumstances warranting attorney fees payment include economic disparity and misconduct.
Economic Disparity
Requesting and recovering attorney fees in New Mexico is possible in some instances. State law recognizes that attorney fees can be shifted in the event of economic disparity between the petitioner and respondent.
Per New Mexico law, “[T]he central purpose of an award of attorney fees under §40-4-7(A) is to remedy any financial disparity between the divorcing parties so that each may make an efficient and effective presentation of his or her claims in the underlying divorce case.”
The biggest issue with economic disparity is that it often leaves one spouse at a disadvantage when presenting an effective claim. In other words, one spouse lacks the ability to fully represent their own interests and assert their legal rights.
To determine if economic disparity plays a role in a divorce, New Mexico courts will often consider whether one party needs an advancement of attorney fees. They will also look at liquid assets and additional finances to determine if the other party has the ability to pay the fees for both sides.
If the economic disparity is evident and the opposing party has the funds, the court has the ability to award attorney fees to assist the disadvantaged party. The court also takes into consideration child custody. It is not uncommon for New Mexico judges to grant attorney fee requests liberally when economic disparity is present, and the outcome of the case would impact any involved minors.
Misconduct
New Mexico court also has the right to award attorney fees in the event of misconduct. Examples of misconduct include the following:
- Failing to follow prior orders
- Failing to provide requested information
- Failing to disclose accurate finances
- Bad faith conduct
In order for attorney fees to be awarded on the basis of misconduct, there must be evidence to support the claim.
Requesting and Recovering Attorney Fees in New Mexico
If you are in a situation where you believe recovering attorney fees is reasonable, there is a process you must go through. Per New Mexico Rule 1-054 and Rule 1-27, you can expect the following:
- The court will evaluate assets and income to determine whether a disparity exists between the parties.
- Prior settlement offers will also be considered.
- The total amount of attorney fees expended by each party will be calculated.
- The court will also consider success on the merits.
Once the information has been presented and evaluated, the assigned judge can decide whether to award attorney fees and the specific amount to be awarded. The judge may choose to grant the entire amount, a portion of the amount, or none of the owed fees.
Reach Out to a New Mexico Divorce Attorney
Our New Mexico divorce lawyers understand how challenging divorce can be, no matter the circumstances. If you are in the midst of filing a petition or you’ve been served a petition, we are here to help.
When economic disparity plays a role, we strive to ensure the disadvantaged party has access to the resources they need to manage their affairs as efficiently as possible.
Ready to learn more? In a no-obligation consultation, we’ll review your circumstances and help you determine how best to proceed to protect your future. Call (505) 503-1637 or contact us online today to learn more.