Ohio courts have the authority to mandate that one party pay all or a portion of the other party’s legal fees in a divorce, dissolution, legal separation, or annulment of marriage when the court deems it equitable (fair) to do so. (See Ohio Revised Code 3105.73)
Ok, so when is it fair?
The simple (and somewhat cynical) answer would be whenever the guy or gal in the black robe feels like it. While domestic relations judges and magistrates exercise incredible discretion over when to award attorney’s fees, the legislature and case law have provided several distinct situations where it is appropriate to award all or part of a party’s legal costs.
1. One party has all the money.
In many marriages, one spouse takes care of the money. In the majority of marriages, one spouse is the primary breadwinner. When those two groups overlap, there can be problems when one or both spouses decide to end the marriage. Add the inability of the other spouse to access the marital funds, and there can be a serious problem. This is the most straight forward instance of awarding attorney’s fees. The others are a little more murky.
2. One party has made the divorce take longer or be more difficult than it should.
This is where things get gray. Courts are deeply concerned about what we call in the industry “judicial economy.” Besides wearing sandals in the courtroom, wasting a judge’s time is the absolute best way to earn the ire of the court, especially when it is to the detriment of the other party and costs everybody more money. Judges do not want to give angry spouses or greedy attorneys free reign to drag litigation out forever in an effort to hurt the other spouse or rack up billable hours. Conversely, each party has the right to seek every remedy afforded to them by the law. There is nothing in the revised code that says people have to agree. That is why we have courts.
Another problem in this situation is how much recompense the offended party deserves. Even if one spouse has dragged things out for no justifiable reason, the other spouse is probably not entitled to all of their fees being paid. Ohio judges have been far more likely to only grant a portion of the fees be paid. This portion is usually determined by the offended party showing what the other side did wrong, and how many fees were incurred as a result of that wrongful action. If the side in the right cannot show this causal relationship or calculate the harm suffered, the judge will likely deny any award.
3. Wrongful Actions/Violations of Court Orders
These instances are cousins of the second category, but deserve to be discussed separately. Even more than they expect to be respected, judges expect to be obeyed. If one party intentionally violates the rules of the court, or worse, refuses to abide by a court order, the judge may be inclined to remedy the situation via an award of attorney’s fees. This should not be seen as a vindictive punishment or something deserved by a spouse who unfortunately decided to marry a (insert four letter word). Such awards are rather intended to make sure everyone follows the rules and is as civil as possible. The boys in blue cannot solve every problem, and hitting someone in the pocketbook, especially with bills incurred by their soon to be ex-spouse, can be a particularly persuasive deterrent.
Keep in mind, however, this is an extreme remedy. Courts are unlikely to throw the book at a father who keeps the kids two hours longer than he was supposed to (unless, perhaps if this becomes habitual), or a wife that files her documents late. The best thing you can do is document every instance you believe your spouse or ex-spouse violates an order or is doing something intentionally to hurt you or the court proceedings. Secondly, do not retaliate. This will only make you miserable and weaken your position. Lastly, don’t sweat the small stuff. You are involved in or have gone through a divorce. Some unpleasantness is unfortunately likely. Not only will relative leniency benefit you should you accidentally trip up (especially in the case you share children), but calling your attorney every time you hear about disparaging remarks from your spouse through the grapevine will probably just cost you money.
The bottom line when it comes to an award of attorney’s fees is it is up to the judge. Their decision is law, and appellate courts are reluctant to overturn them. Really, the best thing you can do in these circumstances is remember the Golden Rule. It is as helpful in domestic relations as it was when you first learned it.