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Attorney Fees in a Divorce

A litigant is typically responsible for his/her own attorney fees in a lawsuit. This frequently has the practical effect of making litigation not so much about the merits of a case, but, instead, more about the cost of enforcement or defense versus the likelihood of success and exposure at trial. In Missouri, the two main exceptions to this general rule are whether a (1) relevant contract permits the court to award attorney fees  or (2) if there is a relevant statute authorizing the award of attorney fees.

In divorces in Missouri, Section 452.355, RSMo specifically authorizes the court to award attorney fees to a party. The relevant language of the statute is:

[T]he court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending [a divorce] and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment.

The person requesting an award of attorney fees must prove that he/she is entitled to such award. Andrews v. Andrews, 290 S.W.3d 783, 787 (Mo. Ct. App. 2009). When deciding whether to award attorney fees, the Court must consider the parties’ financial history, the debts each party owes, as well as what employment and non-employment income each party has before it can determine either need or ability to pay such fees. The court can usually only award fees after these determinations are made. With respect to the extent of a fee award, the trial court is considered an expert on the value of attorney fees. Potts v. Potts, 303 S.W.3d 177, 196 (Mo. Ct. App. 2010). 

 

In practice, essentially all parties to a divorce request attorney fees. From experience, though, very few people receive their attorney fees. This is due to at least a couple of reasons. First, most divorces are settled before a trial and parties rarely agree to pay for the other side’s attorney fees. Second, many courts are reluctant to award attorney fees, unless there is a large disparity in financial circumstances. Despite how rare it is to receive an award of attorney fees in a divorce, it is nonetheless important to make the request. 

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