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An Award of Attorney's Fees in Minnesota Divorce and Family Law Proceedings

Minnesota divorce and other family law proceedings can cost a proverbial "arm and a leg" in the form of attorney's fees. This is especially the case if no agreement can be reached and the matter eventually is decided through a multi-day trial. What if one parent or spouse has a much greater income than the other, and has a greater ability to pay attorney's fees? Or, what if one parent or spouse is pursuing relief from the Court that he or she clearly is not entitled to, forcing the other parent or spouse to incur unreasonable and unnecessary attorney's fees to defend him or herself?

These are the two situations where Minnesota Courts in family law cases can order one party to pay to the other party an amount as reimbursement for, or a contribution towards the other party's attorney's fees. These two situations are commonly referred to as (a) need-based attorney's fees; and (b) and conduct based attorney's fees.

Need-based attorney's fees are awarded if there is a substantial disparity in the parties' incomes and the Court finds that one party has the means to pay the other party's attorney’s fees, the other party does not have the means to pay the attorney's fees, and an award of attorney's fees is necessary to allow the other party to make a good faith assertion of that party's rights in the divorce or other family law proceeding. In such a case, the Court will award attorney's fees, costs, and disbursements in an amount necessary to enable a party to carry on, or contest the family law proceeding.

Conduct-based attorney’s fees are awarded against a party who unreasonably contributes to the length or expense of the Minnesota divorce or family law proceeding without a finding of either party's need or ability to pay the attorney's fees. Such conduct based attorney's fees are awarded if a party is pursuing a frivolous or meritless claim, the party fails to appear in Court or for a scheduled deposition, a party fails to respond to discovery requests, or the party simply engages in vexatious litigation that forces the other party to incur attorney's fees to defend.

Attorney’s fees can also be awarded if the parties expressly stipulated to it in their Minnesota divorce decree or other family law order. For instance, they could stipulate that one party shall pay a credit card debt as part of a divorce and shall indemnify and hold harmless the other party, and that if the party fails to pay the credit card debt the other party could recover reasonable attorney's fees in a post-decree motion in connection with enforcing the divorce decree. In such a case, the parties created a contractual provision to provide for an award of attorney's fees. This is consistent with the principle known as the "American Rule." In the United States, generally each party to a civil lawsuit is responsible for paying his or her own attorney's fees, unless a statutory or contractual provision provides otherwise. The ability to order need-based and conduct-based attorney's fees in family law proceedings is via the Minnesota family law statutes. The ability to order attorney's fees in the above-example would be based on the parties specifically contracting for an award of attorney's fees.

The issue of attorney’s fees is almost perpetually present in all divorce and family law proceedings. However, the Courts do not frequently award attorney's fees, and when they do, it usually only covers a fraction of the actual fees incurred by the party. And in the few cases where the Courts do award attorney's fees, a bigger problem normally results in the attempt to actually collect the attorney's fees from the other party after the Court has awarded them.