By Angela Foy
Attorney, Cordell & Cordell
When it comes to attorneys’ fees and who pays them, the general practice, called the American rule, is that each side pays for his or her own attorney. It is not the case, as it is in other jurisdictions, that the “loser” has to pay the entire, actual amount of the “winner’s” attorney’s fees. However, one party may be required to pay the other party’s attorney in certain circumstances.
In the Petition for divorce, if you are the Petitioner, or in your Response and Counterclaim, if you are the Respondent, you can ask for either a contribution to your attorney’s fees or that your spouse be responsible for the entire amount. While this request is frequently made, it is vary rarely granted. In cases where the court has required payment from one spouse to the other’s attorney, the cases usually involve situations in which one spouse has access to substantially more assets and income than the other and the payment of attorneys’ fees was required in order to put the spouses on equal footing.
If raised at the first hearing when the court addresses temporary orders, the court may order a set amount to satisfy the attorney’s retainer at the temporary hearing and then possibly review the issue if needed as the case progresses. Parties have also negotiated the advance on their own, and sometimes the retainer amount is an advance on the final property division. In one rare instance, a judge asked an attorney to represent a spouse in need and entered an order that the attorney’s bill would be satisfied from the proceeds of the sale of the parties’ house.
In terms of actually hiring an attorney, each attorney and law firm has their own requirements for representation. Some individual attorneys will engage in representation without a significant retainer upfront if the potential client has access to assets that will be addressed in the divorce. Many clients seek help and loans from others to meet their obligations. Sometimes clients expand their credit. Most jurisdictions also have some resources, though limited, that are reserved for individuals with low income. The local courthouse, legal bar, or legal aid society may be able to refer you to an attorney or firm that can help if you meet the stated requirements.
While it is also the individual’s choice to proceed pro se, without an attorney, I highly recommend that every party to a divorce consult with an attorney before deciding whether to proceed on their own. Especially in cases in which the parties have significant differences in access to income and assets, an attorney may be able to provide options that you otherwise may not have known.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.
