What it Takes to Win an Award of Attorney's Fees

Under Minnesota law, a family court can make one party pay another party's attorney's fees in two ways. The two forms of fee awards are need-based awards and conduct-based awards.

Need-based attorney fee awards are made in cases in which one party cannot afford to pay their fees. In order for the court to rule that Party A should pay Party B's fees, it is necessary for the court to find that Party B cannot afford the fees, but also that Party B has incurred fees in good faith, and that Party A has the means to pay the fees. That last requirement is often the problematic one. Frankly, for every case in which that is the situation (Party B can't afford fees, and Party A can), there are about twenty cases in which one party can't afford their fees, but neither can the other party.

Conduct-based attorney fee awards are not dependent on the parties' respective ability to pay fees. If a party is found by the family court to be acting in bad faith, and unreasonably contributing to the length and/or expense of the proceeding, the family court can make that party pay the fees of the other party. It should be noted, however, that family court judges do not frequently make this type of award. It can be frustrating, because there are many spouses who are convinced, beyond a doubt, that the other spouse is acting in bad faith, and unreasonably contributing to the length and expense of the proceeding. For the court to reach that conclusion is a very different, and less common, occurrence. Moreover, since the court need not expressly find that the unreasonable party can afford to pay the fee award, the prevailing party may have difficulty collecting on the award.

Another very important consideration is this: if you are seeking an award of attorney's fees, in most cases you will incur additional fees to attempt to get the award of fees. In most cases, the court will not award the fees, and you are left not only with no fee award, but with an attorney bill higher than it otherwise would have been.