If you need a divorce, you will have to decide whether you are going to hire a lawyer. That means you are going to have to think about how to pay for your lawyer.
You may be surprised to find out that once the divorce court makes a temporary restraining order, you may NOT use these resources to pay for your attorney fees:
- Money that is in any type of account except a CHECKING That means you cannot touch your retirement, certificates of deposit, money market accounts, savings accounts, etc. Once the restraining order is in place, ONLY checking accounts are available to pay your attorney fees.
- You cannot use a home equity line of credit or take any loans which are marital assets.
- You cannot sell anything that is marital property.
- You cannot take any loans, open any credit cards or incur any kind of debt in your spouse’s name or on your spouse’s credit.
- Your spouse’s wages or earnings, unless they are deposited into a joint checking account
You MAY, however, use the following resources to pay your attorney fees after you have been served with a temporary restraining order:
- Your wages
- Money that you have in a checking account
- Money from you withdrew from your retirement or borrowed against an asset before you were under a temporary restraining order
- Loans (must be in your name only)
- Credit Cards
- Help from family members
- Attorney fees that your spouse is ordered to pay by the court, and your spouse actually DOES pay them
Of all of these resources, the last one, court ordered attorney fees, is the least reliable. In general, Utah domestic relations courts are very conservative when awarding attorney fees, especially at the beginning of the divorce case. Your lawyer can file a motion asking the Court for attorney fees for Often, the amount of attorney fees ordered, is very low compared to the attorney fees you have incurred. The first opportunity to ask the court for attorney fees comes when you file your initial divorce papers, but the first time the court actually considers awarding attorney fees is when the court makes Temporary Orders. If temporary orders are not decided based upon the initial filing, temporary orders are usually decided at the first hearing, or after the parties file Temporary Orders Affidavits. In Franklin County, it is very common for the court to award NO attorney fees in temporary orders, and to reserve the matter for decision at the final hearing (trial). Since more than 90% of divorce cases settle, that means that a large percentage of litigants do NOT get attorney fees unless their case goes to trial. Ironically, many divorce cases settle because one party has control of the assets and income, and the other party can no longer afford to pursue their fair share.
Poor planning for divorce can cost parties everything they hoped to have to start their new life. Your initial retainer is NOT going to cover the cost of the whole divorce. Don’t deposit that initial retainer and hope for the best – make a plan. If you can’t afford to make a plan, then reconsider dissolution, or see if you qualify for help from the Legal Aid Society. What you do NOT want to do is close your eyes and make a wish. Make a plan, not a wish.
When Utah courts award attorney fees in divorce cases, there are laws and regulations that govern their decisions, but the court still have a lot of discretion.
Upon motion of one of the parties, the court can order attorney fees at any time, and can rely on several sources of authority to do so:
- The court’s general equitable powers, as set forth in Utah Revised Code 3105.011
- An Utah Statute which specifically addresses attorney fees in divorce, dissolution, legal separation, or annulment cases, ORC 3105.73
- Utah Rule of Civil Procedure 75, which governs temporary orders
- Utah Rules of Civil Procedure 26-37, which governs discovery, and awards of attorney fees and expenses for failure to comply with discovery
- Utah Revised Code 051(K)which REQUIRES a court to award reasonable attorney fees for contempt regarding visitation or parenting time
- Rule 71of The Rules of Superintendence for the Courts of Utah, which governs reasonable attorney fees.
Free Consultation with Divorce Lawyer in Utah
If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506 for your free consultation. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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