Unfortunately, I often hear those going through a divorce proclaim, “She won’t contest much. I have all the money so she can’t afford to fight the divorce.” Not only does this show a lack of maturity in the person making such a statement, such a person may also be greatly mistaken.
Under Utah law, “[m]arital property ordinarily includes all property acquired during marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App. 38, 392 P.3d 968. The presumption is that marital property will be divided equally. Id. This includes all income earned by either party until the divorce is complete. So even though the husband may be earning $200,000 per year and the wife is a stay-at-home mom bringing in no income to the family (although stay-at-home mom’s save the family tens of thousands, if not over $100,000 each year in the work they perform), the $200,000 income belongs equally to the wife as it does to the husband until the marriage is terminated in divorce. This means she has just as much right to use the funds from that income to pay her attorney as the case progresses, as the husband has to pay his attorney.
Additionally, Utah Code Annotated (UCA) §30-3-3(1) provides that in a divorce proceeding, “the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action.” In order to be awarded attorney fees, the requesting party must prove (has the burden) that:
- The payee spouse (the one requesting the other spouse pay the fees) has a financial need;
- The payor spouse (the one being asked to pay the fees) has the ability to pay; and
- The requested fees are reasonable.
Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.
In the case of a husband earing $200,000 each year and a stay at home mom, these conditions should be fairly easy to meet. Certainly, the stay-at-home mom has a financial need as she has no income of her own and now is facing having to take on the expenses of an entire household by herself. The husband earning $200,000 most likely has the ability to pay. The attorney fees should take precedence over such niceties as club dues, ATV or boat payments, cable TV, XBOX or other video games, and other forms of entertainment. Finally, if she has an honest attorney, the fees should be reasonable. Even if not reasonable, the court should determine what amount is reasonable and award her at least that amount. So, don’t fool yourself into thinking you can simply outspend your spouse into not contesting critical issues in your divorce. And on the other side, don’t let yourself be bullied into thinking you don’t have the funds to fight for your rights in your divorce. Be reasonable and work things out as amicably as possible. It is always better to be fair and work things out, than to pay high attorney fees and turn everything over to someone else (a judge) who will make decisions for you that frequently won’t give you what you want.
