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Legal Memorandum: Attorney Fees Award in a Divorce Proceeding

Issue: When is a spouse in a divorce proceeding in Minnesota entitled to a contribution for attorney’s fees?

Area of Law: Family Law
Keywords: Attorney fees; Ddivorce proceeding
Jurisdiction: Minnesota
Cited Cases: 409 N.W.2d 60; 587 N.W.2d 292; 418 N.W.2d 198
Cited Statutes: Minn. Stat. § 518.14, subd. 1 (2009)
Date: 03/01/2010

Pursuant to statute, the court must award need-based attorney fees, costs and disbursements in the amount necessary to enable a party to contest a dissolution proceeding if it finds:

(1) that the fees are necessary for the good faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

 

(2) that the party from whom fees, costs, and disbursement are sought has the means to pay them; and

 

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

 

Minn. Stat. § 518.14, subd. 1 (2009).  Such an award “‘rests almost entirely within the discretion of the trial court.'”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. Ct. App. 1988) (quoting Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. Ct. App. 1987)).

A spouse, not acting in bad faith, who is unemployed and lacks financial resources to pay attorney’s fees in divorce proceedings should be able to receive contribution for those fees from a spouse with financial ability to contribute to attorney’s fees, costs, and expenses.  See Karg v. Karg, 418 N.W.2d 198, 202 (Minn. Ct. App. 1988) (attorney fees award proper where payee would have to liquidate part of property award to pay fees and payor had substantially higher income). 

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