Judges have the discretion under A.R.S. § 25-324 to order one party to pay all or part of the other party’s attorneys fees and costs incurred in a divorce or family law case.
In making an award of attorneys fees, the Court must consider two factors: 1) the relative financial resources of both parties; and 2) the reasonableness of the positions taken by both parties.
Generally, the more finances available to one party, based upon a higher earning capacity or sole and separate property belonging only to one party, the more likely the Court is to consider an award of attorneys fees.
Also, the more unreasonable one party was in negotiations, or the more one party is at fault for causing the case to proceed to a contested trial, the more likely the Court will impose attorneys fees as a sanction.
Courts prefer to have both parties pay for their own attorneys fees, unless one or both of the above factors stands out significantly. I advise my clients to make decisions as if my clients will be left paying for all of the attorneys fees, as this is generally the result. Incurring additional attorneys fees with the hope that the Court will make the other side pay for these fees may backfire, especially if the Court recognizes that you have done so and determines that doing so was an unreasonable position.
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