It’s His Fault, He Should Pay Attorney Fees
He controls the money, the bank accounts, and the credit cards. If he wants a divorce then let him pay the attorney fees. This sounds like a fair proposal, right?
The problem is divorce courts are not always about fair. The Court is about the law. And the law says Nevada is a no-fault divorce state, meaning the judge cannot award attorney fees simply because one party started the divorce. There is no provision in Nevada law for the court to say, “Plaintiff is at fault, or plaintiff started the divorce so he should pay the attorney fees.”
With Nevada courts not able to find fault or blame, issues like adultery, committing a felony, excessive gambling debts are not relevant. Therefore the court cannot award attorney fees simply because one party has caused the divorce.
Although Nevada is a no-fault state, there are some circumstances where a court may order one party to pay all or part of the other’s legal fees.
When one party causes the divorce process to drag, such as making frivolous motions, hurling untrue allegations, or refusing to respond to discovery, a court may order the party responsible for driving up the costs to pay legal fees. This still has nothing to do with fault for causing the divorce, but for acting in bad faith during the divorce process. Bad faith can be explained as not acting reasonable.
In situations where the spouses have large differences in income the judge may order compensation for attorney fees. Under community property laws, and Nevada is a community property state, half the income earned by one spouse is the property of the other. So, if one spouse earns $80,000 and the other earns $20,000, to the court they both earn half of $100,000, or $50,000 each.
A spouse can file a motion asking the court to order the bread winner to pay their legal fees. The court will evaluate the financial situation of both parties and decide accordingly. Usually ordering attorney fees and living expenses. The leading case in this situation is Sergeant v. Sergeant.
In 1972, Harry Seargent, 81 years of age at the time, was worth over $3,000,000. His wife Matilda did not work and did not have access to money. The court awarded Matilda $52,000 in attorney fees. The court felt Matilda had a right to hire an attorney equal to the level of attorney Harry would hire. The court felt attorney fees were appropriate to create an equal playing field.
If the court didn’t award Matilda attorney fees she would have been unable to hire a competent attorney to fight for a proper division of marital assets or spousal support. This would gave Harry an unfair advantage in the divorce.
This was 1972 where the common scenario was the wife staying at home while the husband goes to work. This is not about gender. If the roles were reversed and Matilda earned the income the court would have given Harry attorney fees.