Attorney Fee Awards in Oregon Divorce Cases

If you thought your monthly budget was tight during marriage and that there wasn’t enough money to go around, just wait until you get divorced.

At the start of a divorce and upon physical separation, most families go from being a two-income household living under one roof to a two-income household living under two roofs. This means that many monthly expenses– such as mortgage/rent, utilities, insurance, and groceries– are doubled.

Marriages heavily intertwine people in many personal and financial ways, and untangling them takes a significant amount of work by experienced divorce lawyers. Therefore, the legal work on Oregon divorce and family law cases can come with a hefty price tag.

In addition to attorney fees on both sides, professional services might be needed by expert witnesses or consultants. To limit their own financial exposure and liability, clients often ask if the Court can make their spouse pay attorney fees.

Can the Court Make My Spouse Pay Attorney Fees In My Oregon Divorce?

The answer to this question is not straightforward. While Oregon law does permit the court to award one party some or all of their attorney fees associated with the case, such awards are relatively rare. There are specific circumstances in which the court may make a spouse pay attorney fees, but these situations are limited.

In general, the court assumes that each party will pay their own attorney fees. However, if one spouse controls all of the marital assets, the court may award “suit money” to the other party to enable them to hire an attorney. For example, if a stay-at-home mother has no access to the marital assets during a divorce, the Court may award her temporary suit money to level the playing field.

The Court may also order one spouse to pay the other’s attorney fees if they behaved poorly or in bad faith during the divorce proceedings. However, this usually happens after the case is completed, and specific timelines and procedures under ORCP 68 must be followed to secure a potential recovery of attorney fees. It is recommended to consult an attorney for guidance on these technicalities.

Do I Have To Pay My Own Attorney’s Fees In My Oregon Divorce?

In the short term, yes.

Unlike criminal defense cases where there are public defenders available at low cost or no cost, Oregon divorce cases in family law court are civil matters and attorneys are not automatically appointed as a matter of right.

Although you are not required to have an attorney to represent you in your divorce, it’s certainly a good idea. You will have to work with that attorney to come up with a budget you can afford, and be as efficient as possible to get the most you can with the financial resources you have available.

What Factors Will The Court Consider In Awarding Attorney’s Fees?

ORS 20.075 – Factors to be considered by court in awarding attorney fees limitation on appellate review of attorney fee award

(1) A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees:
(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the parties.
(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.
(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190 (Prevailing party fees).
(h) Such other factors as the court may consider appropriate under the circumstances of the case.

(2) A court shall consider the factors specified in subsection (1) of this section in determining the amount of an award of attorney fees in any case in which an award of attorney fees is authorized or required by statute. In addition, the court shall consider the following factors in determining the amount of an award of attorney fees in those cases:
(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney’s professional relationship with the client.
(g) The experience, reputation and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
(3) In any appeal from the award or denial of an attorney fee subject to this section, the court reviewing the award may not modify the decision of the court in making or denying an award, or the decision of the court as to the amount of the award, except upon a finding of an abuse of discretion.
(4) Nothing in this section authorizes the award of an attorney fee in excess of a reasonable attorney fee.

Frequently Asked Questions About Attorney Fees in Oregon Divorce Cases

Can a judge order my spouse to pay my attorney fees in an Oregon divorce?

It is possible, but it does not happen often. Oregon courts generally expect each party to pay their own legal fees. However, there are two main situations where a judge may shift fees to the other side. The first is when there is a significant financial imbalance between the spouses — in that case, the court may award temporary “suit money” to help the disadvantaged spouse participate in the case. The second is when one spouse has behaved in bad faith or acted recklessly during the proceedings. Even then, you have to follow specific procedures under ORCP 68 to actually collect.

What is “suit money” in an Oregon divorce?

Suit money is a temporary award the court can make at the beginning of a divorce case to help a financially disadvantaged spouse hire an attorney. The idea is to level the playing field when one spouse controls most or all of the marital assets and the other has no real way to pay for legal representation on their own.

What counts as bad faith conduct in a divorce case?

Oregon courts look at conduct that is reckless, willful, malicious, or illegal when deciding whether to award attorney fees under ORS 20.075. This can include things like hiding assets, refusing to comply with discovery, making frivolous legal arguments, or dragging out the case unnecessarily. The more clearly bad faith the conduct, the stronger the argument for a fee award.

Do I need a lawyer for my Oregon divorce?

You are not legally required to have one, but it is a good idea in most cases. Oregon divorce cases involve civil law, so there are no public defenders available the way there are in criminal court. An experienced divorce attorney can help you avoid costly mistakes, protect your interests, and work efficiently within whatever budget you have.

How does the court decide how much to award in attorney fees?

If the court decides to award fees, it looks at factors like the time and difficulty of the work involved, the skill the case required, what attorneys in the area typically charge for similar work, and the results that were achieved. ORS 20.075 also caps any award at what the court considers a reasonable fee, so you cannot recover more than that even if your actual bill was higher.

When in the divorce process can I ask for attorney fees?

It depends on what you are asking for. A request for suit money to help fund your case needs to come early, often at the temporary orders stage. A request for fees based on the other party’s bad faith conduct typically comes after the case is concluded. Missing the deadlines or failing to follow the procedures under ORCP 68 can cost you the ability to recover anything, which is one more reason to work with a knowledgeable family law attorney from the start.

Talk to a Portland Divorce Attorney About Your Options

Attorney fees in a divorce case can add up fast, and understanding your options early can make a real difference. Whether you are wondering if you qualify for suit money, concerned about your spouse running up legal costs in bad faith, or just trying to figure out how to budget for your case, Romano Law is here to help.