All divorce attorneys share the same stories of potential clients coming into their offices wanting a divorce and then telling the attorney that there ex will pay for it. That is not usually reality. Getting attorney’s fees out of your soon to be ex is a long drawn out, painful, and often unfruitful process. An attorney would be a fool to take the case with the hope that the other side will pay for it.
That doesn’t mean that if the stars were to align attorney’s fees cannot be awarded, but the odds are not likely. The first thing you and the attorney should consider is whether there is actually money or something that can be sold to pay for the fees. Retirement accounts are always great, but you have to consider the cost of withdrawing funds. You also have to consider that any assets sold for cash may not get market price.
Utah Law provides that the Court “may” order the other party costs and attorney’s fees at any point during the divorce. If you want attorney’s fees prior to the divorce or during the divorce, you need to file a motion. The motion will be set for hearing before the commissioner who will the decision. Of course, your soon to be ex will have to be with notice of the hearing and the motion.
So what does the “may” mean? The court will look at the following factors to determine if an award of attorney’s fees is applicable:
• You lack the financial resources to pay the costs and fees;
• Your soon to be ex has the financial resources to pay the costs and fees;
• the costs and fees are necessary; and
• the amount of the costs and fees are reasonable.
Attorney’s fees are much easier to get when you are enforcing an order. By get, I really mean getting a judgment is easier to get. Collecting on a judgment requires getting a writ to garnish wages or bank accounts. It really depends on whether or not your ex has a job or funds in a bank account. It is not uncommon for your ex to drain the bank account so that the funds cannot be garnished. At any rate, getting a judgment does not mean that you are going to collect funds, but it is still good to have one.
When your ex fails to do what the Court ordered, the Court is just not happy. A Decree of Divorce is the order of the Court and not something you are telling your ex to do. Failure to listen to the judge is a big no no and could really annoy the judge. The judge’s manner of expressing this annoyance is to make the offender pay attorney’s fees.