Posted by: Suzanne Griffiths | June 30, 2013

Uneven Incomes-Uneven Outcomes

In divorce, there is no winning, just different degrees of loss.  This is particularly relevant in divorce litigation.  Fighting over petty details, small issues, attorney fees or pieces of property often ends up costing more than its worth.  Litigation is difficult, uncertain and most of all, expensive.  Litigating when there are uneven incomes and financial resources is even more complicated.  The spouse with more income and more financial means often has access to better and more experienced attorneys, and may drag out the battle, while the party without funds cannot continue.  In some cases, the poorer spouse can request an award of temporary attorney fees from the other, and in fewer cases, they are awarded those fees.  There are significant obstacles in the way of obtaining attorney fee orders.  There is a substantial burden of proof in order to be awarded attorney’s fees, but more than that, the party without funds to litigate, must go to court to get the fees awarded.  All these obstacles make it common for the poorer party to be out-litigated and outdone.

Legal Issues on Attorney Fees

In a divorce proceeding, attorney fees are awarded primarily to equalize the financial positions of the parties.  Case law and the legislature, however, have laid a heavy burden of proof on the party seeking to be awarded attorney fees.  The statute which addresses this matter says that the “Intent is to equalize the status of the parties by ensuring that neither party is forced to suffer unduly as a consequence of the termination of the marriage” (C.R.S. § 14-10-119) however, the courts have been somewhat sparing on their interpretation of equalizing the parties.  The implementation of the law requires that there be a major disparity of income and means between the parties to grant attorney’s fees.  The award is at the discretion of the court; one court may choose to try to equalize the parties completely, comparing incomes and apportioning fees accordingly, while another court may simply ignore the problem and leave the poorer spouse to struggle on as best they can. This raises the next major problem.

Getting Help

Divorce litigation is time consuming, expensive and requires the best quality legal representation. The problem is that a good divorce attorney is hard to find without funds.  Lawyers in divorce cases are not permitted to work on a contingency fee basis, so most lawyers work on a retainer basis.  To hire one of these lawyers, you have to have money up-front and the higher end attorneys will also require an indication that you can continue to pay for ongoing litigation.  Furthermore, the best attorneys are generally unwilling to take on a case where the client has inadequate funds to pay the costs as needed. Provision often needs to be made for experts such as business appraisers or parenting evaluators and attorneys look to their clients to pay these costs in addition. Good trial lawyers have many clients who can afford their fees and costs and they cannot afford to finance their client’s expenses or carry substantial credit. Litigation for the poorer spouse therefore becomes more difficult because the pool of talented lawyers available for their cases is limited.

 An award of attorney’s fees is just that, an award given by the court.  This award requires a legal argument, witnesses and more attorney fees.  A person who needs attorney fees and expert costs has a harder time getting those which often reduces their resolve to hold out for a fair settlement in many cases.

 The Courts

An award of attorney’s fees is entirely at the discretion of the court.  Despite many court decisions making an award of attorney’s fees difficult, a recent appellate court decision has set a precedent for the award of substantial attorney fees and costs to be paid in advance to cover anticipated costs. See In re Marriage of Rose,  04CA2160 (Colo.App.2006.) Here the Court of Appeals stated that allowing prospective fees and costs would diminish the advantage that one spouse may have over the other in litigation because of their respective financial circumstances. In this case the Wife was awarded $75,000 for current and anticipated attorney fees and $75,000 for anticipated appraisal costs.  This new precedent is very empowering for disadvantaged spouses and will hopefully signify a move towards more equality in divorce litigation.

Litigating with uneven incomes has unfortunately often resulted in the poorer party being out-litigated and outmaneuvered.  The law may intend for the courts to equalize the disparity between parties, however courts rarely achieve this objective on a temporary basis while the case is proceeding. The Courts are overburdened and their dockets do not permit substantial time being set aside for attorney fee disputes, when there are urgent child related matters needing attention. An award of fees involves time in court, which judges are short of, and further, some courts take the position that awarding attorney fees means that litigation will be encouraged to continue.

Options for the Disadvantaged

Many lawyers will accept credit cards which do allow spouses to obtain credit until their settlements are received at the Permanent divorce hearing or upon settlement of the case. Spouses borrow funds from family members that are paid on settlement. Anyone considering divorce would be wise to set aside funds in an account that can be used to litigate if needed. Some attorneys will agree to wait for partial payment upon settlement. The danger in doing that is that the bill sometimes runs up without the client fully appreciating that this will have to be paid at the end. Clients who are not funding their attorney fees as the case progresses, often fight more battles and increase litigation, because they are not required to face the reality of writing checks on an ongoing basis.

 Uneven incomes cause imbalances in divorce outcomes. The Rose decision will assist in providing some remedy against this injustice for families and children.

 Suzanne Griffiths is a family law attorney with Gutterman Griffiths PC. She can be reached at (303) 858-8090, or through the website at http://www.ggfamilylaw.com

 


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