Many clients ask “how am I going to pay for my divorce if my spouse has control over all the money?” Answer—all costs, expenses, and attorney fees in a divorce are paid for out of marital funds. You will pay for your divorce out of funds owned by the marriage and the Court will force your spouse to disclose where all the money is located.
How Attorney Fees and Costs are Paid For
If a bank account has $50,000 in it and $10,000 is removed to pay for attorney fees, then the marital estate has been reduced by $10,000. In plain terms, $10,000 in attorney fees paid for one spouse costs each spouse $5,000. Because of this concept, every dollar spent in a divorce—whether by you or by your spouse—is a dollar removed from the marital estate.
Tip: Reject Abusive Comments & Threats
Many spouses are told that if they hire an attorney, then they must foot the bill. This is categorically false. The marital estate pays for the attorney fees. Unless it is separate property, money owned by the marriage belongs equally to each spouse—whether it is in your bank or their bank is irrelevant.
We often see the threat that if you hire an attorney then, you are using money “from the children’s inheritance” or “robbing the children’s college fund” (or some variation of that nonsense). This threat is often made by spouses who have already hired an attorney and simply do not want you to respond by also hiring an attorney. It is complete nonsense and you should ignore this sort of emotional terrorism. Protecting yourself in a divorce is the best way to protect your children.
On the Topic of Marital Funds and How They Work
We often see clients who have negotiated portions of their divorce before they hire attorneys. Occasionally, these clients have agreed with their spouse about how to divide some of their money. For example, they might have sold a piece of property and divided the proceeds equally. Although you may think this money is now permanently divided, it may not be.
Here is how that can play out. You and your spouse sell a piece of property and “divide” $200,000 in proceeds with each spouse receiving $100,000. You then spend minimally out of your $100,000 and months later the account is at $92,000. Your spouse, however, goes on a few vacations and spends liberally. Let’s just say their account is at $45,000. In this circumstance, the court may determine that half of your account belongs to them and half of their account belongs to you. At a final hearing, instead of you getting $92,000 and them getting $45,000, you would each get “half” of the total, which would be $68,500.
This may seem unfair because you spent your money wisely whereas the opposing party spent it all. However, remember this concept: until you are divorced, you are still married. If money is spent, is reduces the marital estate for both parties. If money is earned, it increases the marital estate for both parties. The moral of the story? Do not enter into side deals with your spouse and make sure you are advised by an attorney.
You should take extreme caution if you and your spouse spend time apart, particularly in separate states with largely separate lives. Remember, if you are not divorced, then you are married. I will write it again, if you are not divorced, then you are still married! There are countless amounts of spouse’s who had a trial separation where they each went off to go live on their own only to find out later that all of the money their spouse had before the separation is now gone.
Of course, all of this is subject to argument such as economic fault etc., but you do not want to rely on arguing these sorts of things to a judge. If you read earlier sections of this guide, then you know that economic fault is hard to prove and you are better off making sure the money never leaves the marital estate to begin with.
What If I Have No Money for Attorney Fees?
Prospective Attorney Fees Under Rose
A common fear among spouses getting a divorce is how the divorce will be paid for. Particularly for clients with controlling spouses who maintain the financial affairs of the family, divorce can be a difficult proposition. Luckily, Colorado courts are extremely aware of the fact that there can be a disparity in power between two spouses. In a landmark case called In re Marriage of Rose, the Colorado Court of Appeals determined that a Colorado trial court can award “prospective” attorney fees in a case under C.R.S. § 14–10–119. Under this case, a Colorado court can force the spouse with the money to give a set amount of money to the other spouse to fund the divorce. These requests are called “Rose motions” because of the case from which they originated.
If you do not have enough money to hire a divorce attorney but your spouse does, you can hire an attorney and ask them to file a Rose motion to seek funds to pay your own attorney and experts. This ensures that the “hardship” of the divorce is “equalized” and that the parties are placed on an “equal footing.”
Essential Tip: Get Funds Fast
It may take your attorney weeks or possibly months to go through the Rose process to obtain funds for you. If you are considering a divorce and have no financial resources—do everything you can do to get such funds. The time between filing for divorce and the time when you receive temporary maintenance, child support, or attorney fees may be many months. Do everything you can to prepare yourself for this time period. Although your attorney will do absolutely everything they can to get you money fast, you need to live by the scout’s motto: “Be Prepared.”
Attorney Fees at the End of the Case
Besides awarding attorney fees throughout a case “prospectively,” a Colorado court can reallocate the cost of a divorce at the end of the case too (or parenting / other types of cases). A court may, in its discretion, order one party to pay the other’s reasonable attorney fees and costs after considering both parties’ financial resources. C.R.S. § 14–10–119.
To decide whether to award attorney fees and costs, a court will consider the parties’ financial resources as of the date that the decree of dissolution is issued or the date of the hearing on the disposition of property, if such hearing precedes the date of the decree. If, after determining property division, maintenance, and child support, it would be equitable to order one party to pay for the attorney fees incurred in litigating the dissolution action then the court may issue such an award.
In general, if your spouse has far more resources than you, you may have a claim that he or she ought to foot the bill for the divorce. Remember, divorces in Colorado are all about fairness and equity.