Going through a divorce or child custody proceeding can be very difficult for any number of reasons. The stress incurred, the time spent, the effort exerted, and the emotional toll that a court case can take on both you and your children can be overwhelming. Another way it may be incredibly difficult is the financial burden that it may put on you and your family.
Luckily, in an effort to promote fairness, and to help alleviate some of those costs, stresses, and the difficulties associated with them, the State of Colorado has enacted laws which may allow for a party in a divorce proceeding or child custody case to recoup some or all of their attorneys fees and costs stemming from the legal work associated with the case.
In a Colorado divorce or child custody case, as follows are three main ways in which to be awarded attorneys fees and costs from the other party to help pay for your legal representation in the proceeding.
The first of these stems from a statute addressing civil contempt, which is governed by Colorado Rules of Civil Procedure 107. There are many reasons for which a Court may hold a party in contempt of court in a divorce or a child custody proceeding. Essentially, if one party to a case is disobeying or disregarding a Court order, they may potentially be in contempt of court. Examples of this could be non-payment of Court ordered child support, or not following a Court ordered parenting plan. If the other party in your case is not following a Court order, and you feel compelled to hire an attorney to assist you in enforcing that order through the Court, Colorado Rule of Civil Procedure 107 allows a Judge or Magistrate the discretion of awarding you the costs and reasonable attorney’s fees in connection with the contempt proceeding. In short, the State of Colorado feels that if you and/or your children have been wronged due to someone else disregarding or disobeying a Court order in a divorce or child custody proceeding, that it is fair that you should be allowed to recoup the attorneys fees associated with having to go back to court to enforce the order through the contempt process. Why should you have to pay because someone else is not following the Court’s order?
The second way a party may be awarded attorneys fees in a divorce or child custody case arises under Colorado Revised Statute section 14-10-119. This statute applies when there is a disparity of financial resources between the parties. Under section 14-10-119, the Court is allowed to consider the financial resources of both parties and each party’s ability to maintain or defend a proceeding in court. If the Court finds that the parties are on such an uneven playing field from a financial resources standpoint that it would be just for one party to pay a reasonable amount towards the attorneys fees and costs that the other party has incurred in the case, then it may order a party to do so. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name.
Another way to be awarded attorneys fees in Colorado in a divorce or child custody proceeding comes under Colorado Revised Statute section 13-17-102. Pursuant to this statute, in any civil court proceeding (and divorces and child custody cases are civil in nature), a Court may award reasonable attorney fees and costs to one party if the Court determines that the other attorney or party brought or defended an action that lacked substantial justification. In other words, if the other party brings an action against you that the court considers to be frivolous or groundless, then the Court can order the other party to pay your attorneys fees. For example, if in a child custody case someone files a motion to modify custody, and asserts no justifiable legal or factual basis in which the Court could grant the modification, you may be able to recoup the fees associated with you having to defend against the modification of custody action. Under this section, the term “lacked substantial justification” is defined to mean substantially frivolous, substantially groundless, or substantially vexatious.
In short, there are numerous ways to get attorneys fees and costs awarded to you in a family law case in the State of Colorado. If you or a loved one is facing a divorce or custody battle, and has questions about the allocation of attorneys fees in their case, or has any family law related questions at all, please reach out to us. We are happy to help in any way that we can.