Attorney Fees in a Divorce or Custody Case (part 1)

Going to see a lawyer is like going to the doctor. None of us want to do it. Just like we don’t ask to be sick, we don’t ask to have legal problems. In reality, we will all need the assistance of a doctor at some point over the course of our lives. Likewise, may of us will need the services of an attorney at some point in our lives. For a large portion of the population that need will arise within the setting of a divorce or custody case. Just like going to the doctor, no one relishes the notion of paying an attorney to help fix their legal problems. Contrary to common belief, there is no statute indicating that the “loser pays.” However, fortunately there are some instances in which statute provides litigants an opportunity to recoup attorney fees in a Denver divorce, custody, or child support case, depending on the facts and circumstances.

Below are some of the primary or common situations in which one might collect, or recoup, some of his or her attorney fees when going through a Colorado family law case.

1. Pursuant to C.R.S. 14-10-119, the court in a divorce, child support, or custody case has the authority to allocate fees and costs. Specifically, statute indicates that the court can, after considering the financial resources of the parties, award attorney fees and costs for time periods before, during, or after the case. Section 119 only applies to cases brought under “Article 10,” which deals specifically with divorce, custody, and child support. C.R.S. 14-10-119 is not applicable to juvenile cases, such as a paternity case. Section 119 is utilized when there is a significant income or asset disparity between the parties and there is case law setting forth the notion that the purpose of this section is to equalize or balance the positions of the parties related to the cost of litigation. In essence, statute makes provisions for leveling the playing field in a finical sense so that the party with significantly greater resources cannot just steamroll over the other. Section 119 does not assign fault and should not be invoked based on bad behavior of the other party. One should keep in mind that fees or costs under 119 can be sought while the case is pending and one need not wait until the case is done. Litigants who are similarly, or even roughly, financially situated should not anticipate an award of fees under 119, unless one has an attorney and on does not. In those instances, a court might assess fees.

2. Pursuant to C.R.S. 13-17-102, and subsequent sections in Article 17, fees can be sought, and awarded, in cases in which one side has behaved in a manner that is without substantial justification and which is substantially “frivolous, groundless, or vexatious.” A request under Title 13 can be based on the case as a whole, or related to various aspects or moves on the proverbial chessboard which were frivolous, groundless, or vexatious. Sadly, it’s not uncommon to see cases in which one party, or a combination of party and attorney, drive up the cost of litigation. Seemingly every issue can be fought over. With increased fighting comes increased attorney fees and costs. Fortunately, the legislature has recognized that there is, or should be, a price to pay for bringing garbage, or B.S. arguments to court. When assessing an argument for fees under Title 13, one should look for instances in which the other side is bringing arguments or raising defenses which are completely contrary to statute and the facts and which have no basis to be brought. As an example, a party making $100,000 per year, quitting his job while the case is pending because he just doesn’t want to work, and wasting money, time, and brain cells of his wife to deal with his argument that his income for child support calculation purposes should be $0. In this instance, there is a good chance the husband will get hit with fees. One should keep in mind that there is a fine line between creative arguments, grey arguments, and outright frivolous arguments. Another example in which fees might be awarded is the case, which we have seen, in which one party files a motion, seemingly every other week, with no basis, and with the sole intent to annoy or harass the other party. The notion of what is frivolous, groundless, or vexatious is subjective, in that the judge will ultimately determine the issue and will have his or her own notions as to what behaviors constitute such. Often times, frivolous or vexatious arguments or actions are going to come from people representing themselves. C.R.S. 13-17-102(6) makes some allowances for people who do not have an attorney and indicates that fees should not be awarded unless they knew, or reasonably should have known, that their actions were frivolous, groundless or vexatious. When dealing with pro-se people who seem to be walking the line of behaving in a frivolous manner, I will often send them an email specifically indicating that their behavior, or intended course of action, is frivolous. I will lay out why. I will also indicate that if they proceed, fees will be sought. By putting them on notice, in writing, I create a paper trail argument that they knew or reasonably should have known. From time to time, I am forced to warn an attorney as well.

When entering into a divorce or custody case in Colorado, one should never presume that he or she will be awarded fees at the end of the case. The facts and circumstances, including finances, will dictate. As the saying goes, “it never hurts to ask,” of course dependent upon if the facts are there to support a request. There are cases in which the income disparity is so great that an award of fees is likely and should be pursued. Listen to your experienced Denver family law lawyer. He or she will know when a case for an award of fees looks strong and what is worth pursuing.

In the second part of this posting I will focus on other statutory sections in which attorney fees are often award, generally based on one party’s noncompliance with court orders. Litigation can be expensive. It’s nice to know that in certain cases there might be some recompense from that wealthier, game-playing, or noncompliant ex on the other side.

Contact our experienced Denver area family law attorneys to discuss your divorce, custody, or child support matter, including the potential for an aware of attorney fees in that case.