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Attorney Fees in Divorce

Posted on : January 23, 2016, By:  Christopher Hildebrand
Attorney Fees in Divorce Arizona

Attorney Fees in Divorce in Arizona

In Arizona, a trial court’s decision to order one spouse to pay the other spouse’s attorney’s fees and costs may be based upon multiple statutes. In the case of Myrick v. Maloney, the wife (“Maloney”) appealed the trial court’s decision denying her request for an award of attorney fees, citing A.R.S. §§ 25-324(A) and 25-403.08 in support of her request for an award of attorney fees.

Maloney relied upon an appellate case interpreting  Arizona Revised Statute Section 25-324, which held a court could consider the disparity in the two litigating parties’ incomes as a basis to award of attorney’s fees and costs. The Arizona Court of Appeals noted wife’s reliance on that the prior appellate court decision was misplaced because it pertained to an interpretation of an older version of the statute that predated the subsequent amendment to Arizona Revised Statute Section 25-324 that occurred in 1996.

The 1996 amendment to the statute added a second factor to be considered by a judge when ruling upon a request for an award of attorney’s fees and costs; specifically, the additional requirement that the judge also consider the reasonableness of the parties’ positions.

Thus a financial disparity in the two parties’ incomes is no longer, by itself, considered to be an exclusive or predominant consideration for an award of attorney fees. Financial disparity alone does not require a judge to award a party attorney fees in a divorce or other family law case. Separation from Bed and Board This same section also makes it clear that a judge has discretion to deny a request for an award of attorney fees after the judge has considered both the disparity in the parties’ incomes and the reasonableness of their respective positions.

Also in regards to Section 25-324, Maloney argued that the trial court made no findings of fact in support of its decision to deny her and award of attorney’s fees or costs. She claimed it was an abuse of the trial judge’s discretion to deny her an award of fees without also providing findings of fact establishing she took unreasonable positions or prolonged the litigation in support of the trial court’s decision to deny her request for an award of attorney fees.

The Arizona Court of Appeals noted, in response to wife’s argument, that the trial court is under no obligation to provide findings of fact in the absence of a prior written request by that party requesting the trial court set forth its findings of fact and conclusions of law on the issues.

The person appealing a trial court’s decision (“Appelant”) carries the burden of proving the trial court erred to prevail on his or her appeal to the court of appeals. In this case, no transcript of the hearing or documentation of a responsive filing to Myrick’s objection to the request for attorney’s fees was provided by Wife in her appeal. Therefore, the Arizona Court of Appeals had no evidence before it to establish the trial judge abused his discretion, so the appellate court must presume the trial court did not abuse his discretion.

Maloney also cited Arizona Revised Statute Section 25-403.8 in support of her request for attorney fees. The appellate court concluded that particular statute authorizes a court to award a party attorney fees as a temporary order to enable a party who is otherwise unable to afford and attorney to hire an attorney. The statute, however, does not apply to a final award of attorney fees upon the completion of the case.

The Arizona Court of Appeals determined the trial court did not err or abuse his discretion when he denied Wife’s request for an award of attorney’s fees.

Hildeband Law, PC.


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