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.