Who Pays Attorney's Fees in a Connecticut Divorce? (C.G.S. 46b-62)

One of the most immediate and stressful questions that arises when contemplating divorce is, "How will I ever afford this?" The fear of overwhelming legal bills can be paralyzing, especially for a spouse who has been out of the workforce, earns significantly less, or does not have direct access to the family's finances. This financial imbalance can create a power dynamic where one party feels they cannot afford the legal representation needed to protect their rights.

Fortunately, Connecticut law directly addresses this problem. The state recognizes that true justice is impossible if one spouse can use their financial superiority to overpower the other in court.

This comprehensive article will provide an expert analysis of how attorney's fees are handled in a Connecticut divorce. We will explore the key statute that governs this issue, explain the legal standard judges use, and walk through the process of requesting financial assistance from your spouse for legal costs.

You will learn:

The purpose and function of Connecticut General Statute § 46b-62, the law governing attorney's fees.
The two-part legal test the court applies when deciding whether to award fees.
How to file a motion for attorney fees ct family court during your case.
How fees for a child's representative, like a Guardian ad Litem (GAL), are paid.
Practical, real-world scenarios illustrating when fees are most likely to be awarded.

By the end of this guide, you will have a clear understanding of your rights and the circumstances under which a Connecticut court can order your spouse to help pay your legal fees, leveling the financial playing field.

The Foundation: Understanding Connecticut General Statute § 46b-62

The entire framework for awarding legal fees in a Connecticut family law case is built upon a single, powerful statute: Connecticut General Statutes § 46b-62. This law is not designed to punish one party or reward the "winner" of the divorce. Instead, its primary purpose is to ensure access to justice.

What is C.G.S. § 46b-62? The "Access to Justice" Statute

At its core, C.G.S. § 46b-62 empowers a judge to order either spouse to pay the "reasonable attorney's fees" of the other. The statute's goal is to prevent a situation where a spouse with significant financial resources can hire a top-tier legal team and overwhelm the less-monied spouse, who might be struggling to afford any representation at all.

The key language of the statute states that the court may award fees "in accordance with their respective financial abilities and the criteria set forth in section 46b-82."

This means an award of attorney's fees is not automatic. It is a discretionary tool used by judges to ensure both parties can adequately present their case. It allows the dependent or less-monied spouse to "maintain or defend the action" on a level playing field, ensuring the final divorce decree is fair and equitable, not simply the result of financial attrition.

The Two-Prong Test for Awarding Attorney's Fees

When a party files a motion for attorney's fees, the judge doesn't simply grant it. They must conduct a careful analysis based on the two specific prongs mandated by CGS 46b-62. Both prongs must be considered for an award to be made.

Prong 1: Respective Financial Abilities

This is the most critical part of the test. The court must meticulously compare the financial positions of both spouses. The central question is: Does one spouse have a substantially greater ability to pay for legal services than the other?

To answer this, the judge relies heavily on the Financial Affidavit (Form JD-FM-6). This sworn financial statement is arguably the most important document in any divorce. It details each party's:

Income: From all sources, including salary, bonuses, commissions, and self-employment earnings.
Assets: Bank accounts, retirement funds, real estate, investments, vehicles, and valuable personal property.
Liabilities: Mortgages, car loans, credit card debt, and other financial obligations.
Weekly Expenses: A detailed budget of living costs.

The court looks at the complete picture. It’s not just about income. A spouse might have a lower income but possess significant liquid assets (like an inheritance) that could be used to pay for a lawyer. Conversely, a high-income spouse might also have substantial debt that impacts their ability to pay. The judge weighs all these factors to determine if a true financial disparity exists that would prevent one party from adequately funding their side of the case.

Prong 2: The Alimony Criteria (C.G.S. § 46b-82)

The second prong requires the court to consider the same statutory factors it uses when determining whether to award alimony. This might seem strange at first, but it provides a much broader and more nuanced context for the couple's financial history and future prospects.

The key alimony factors found in C.G.S. § 46b-82 include:

The length of the marriage
The causes for the dissolution of the marriage
The age and health of each party
The station, occupation, and vocational skills of each party
The amount and sources of income and earning capacity
The estate and needs of each of the parties

By considering these factors, the court gets a deeper understanding of why the financial disparity exists. For example, in a long-term marriage where one spouse sacrificed their career to raise children and support the other's professional advancement, the alimony factors would strongly favor the dependent spouse. This strengthens their argument that they lack the "ability" to pay fees and that it is fair and equitable for the higher-earning spouse to contribute.

How to Request Attorney's Fees: The Motion and the Process

You cannot simply ask the judge for fees in passing. There is a formal legal process for making the request, which is typically done by filing a specific motion with the court. This can happen at two key stages of the divorce.

Filing a Motion for Attorney's Fees Pendente Lite

The most common and effective time to request fees is at the beginning of the divorce process. The legal term for this is a request made "pendente lite," which is Latin for "while the action is pending."

A pendente lite motion for counsel fees asks the judge to order your spouse to provide you with funds to hire an attorney and pay for litigation costs during the divorce. This is crucial because it provides the financial resources you need to actually proceed with the case, engage in discovery, and negotiate a fair settlement.

The process generally works as follows:

Filing the Motion: Your attorney will draft and file a "Motion for Counsel Fees Pendente Lite" with the family court. This document will state the legal basis for the request (C.G.S. § 46b-62) and explain why you need the funds and why your spouse has the ability to pay.
Supporting Documents: The motion will be supported by your sworn Financial Affidavit, which demonstrates your limited ability to pay. It will also reference your spouse's Financial Affidavit to highlight their superior financial position.
Scheduling a Hearing: The court will schedule a hearing where both parties must appear.
The Court's Decision: After the hearing, the judge will issue an order, either granting or denying the motion. If granted, the order will specify the amount to be paid and the deadline for payment.

This initial award is often seen as a "war chest" to fund the litigation. It may not cover the entire cost of the divorce, but it provides the necessary resources to get started and maintain the case.

The Court Hearing: What to Expect

The hearing on a motion for attorney fees ct family court is a mini-trial focused solely on this issue. Your attorney will present your case to the judge, arguing that the two-pronged test from C.G.S. § 46b-62 has been met. They will use the financial affidavits to draw a stark contrast between your ability to pay and your spouse's.

Your spouse's attorney will have an opportunity to argue against the motion. They might claim that their client does not have the liquid funds available, that their own expenses are too high, or that the amount you are requesting is unreasonable.

You may be required to give brief testimony, primarily confirming the information on your financial affidavit. The judge will listen to both sides, review the evidence, and make a decision based on the law and the specific facts of your case.

Requesting Fees at the Final Divorce Hearing

In addition to pendente lite awards, you can also ask for an award of attorney's fees as part of the final divorce judgment. This can be a request for a final contribution to cover any fees incurred throughout the entire process that were not covered by an initial award.

The court can order this payment in several ways:

A direct payment from one spouse to the other's attorney.
An order that a portion of the fees be paid from a marital asset before it is divided. For example, the judge could order that $20,000 in your legal fees be paid from a joint investment account before the remaining balance is split between you.

Practical Scenarios: When Are Fees Most Likely to Be Awarded?

Legal theory is one thing; real-world application is another. Let's explore some common scenarios to see how the principles of C.G.S. § 46b-62 play out in practice.

Scenario 1: The High-Earning Spouse and the Stay-at-Home Parent

The Facts: Mark is a corporate executive earning $450,000 per year. Sarah left her marketing career 15 years ago to raise their three children and manage the household. They have significant assets, but all accounts are in Mark's name. Sarah has no independent income and only a few thousand dollars in a personal checking account.
The Analysis: This is the classic scenario where an award of attorney's fees is highly likely. The court will see a massive disparity in "respective financial abilities." Furthermore, the alimony factors (long marriage, Sarah's sacrifice of her career for the family's benefit) strongly support her request. A judge would almost certainly grant Sarah's pendente lite motion for a substantial sum to allow her to retain competent counsel and level the playing field.

Scenario 2: The Spouses with Similar Incomes

The Facts: David and Jessica are both public school teachers, each earning approximately $85,000 per year. They have a modest home with a mortgage and similar retirement accounts.
The Analysis: An award of fees is extremely unlikely here. The court would find that their financial abilities are comparable. Each spouse would be expected to pay their own divorce litigation costs ct from their own income and assets.

Scenario 3: The Uncooperative or Litigious Spouse

The Facts: A couple has moderate but similar incomes. However, one spouse (the "obstructive spouse") refuses to turn over financial documents, files dozens of frivolous motions, and forces the other spouse's attorney to attend unnecessary court dates and file motions to compel discovery. This behavior dramatically increases the legal fees for the cooperative spouse.
The Analysis: While the primary standard remains financial ability, Connecticut courts do not look kindly on bad faith litigation tactics. A judge has the authority to award attorney's fees as a sanction for such behavior. In this case, even if the financial abilities are similar, the judge might order the obstructive spouse to pay a portion of the other's fees that were directly caused by their unreasonable conduct.

Scenario 4: The "War Chest" Problem

The Facts: One spouse earns a modest salary of $60,000. The other spouse also earns $60,000 but has a $1 million inheritance from their parents held in a separate trust account. The inherited funds are being used to pay for an expensive legal team.
The Analysis: The court will look at the total financial picture, including the availability of non-marital assets to fund the litigation. The judge will see that one party has access to a massive "war chest" while the other does not. Even though the incomes are the same, the vast difference in available liquid assets creates a disparity in the ability to fund the case. The court can, and likely would, order the spouse with the inheritance to pay a significant portion of the other's legal fees.

A Critical Distinction: Fees for Your Child's Attorney or Guardian ad Litem (GAL)

In high-conflict divorce cases involving disputes over custody and parenting, a judge may appoint a neutral third party to represent the best interests of the children. This person can be either an Attorney for the Minor Child (AMC) or a Guardian ad Litem (GAL).

What is a GAL or AMC?

A GAL or AMC acts as the eyes and ears of the court. They will interview the parents, the children, teachers, therapists, and anyone else involved in the children's lives. They investigate the family dynamics and provide a report and recommendations to the judge regarding what parenting plan is in the children's best interests.

Who Pays for the GAL or AMC?

The services of a GAL or AMC are not free; in fact, they can be a significant expense in a divorce. The question of who pays for them is also governed by C.G.S. § 46b-62.

The cost of guardian ad litem fees connecticut is allocated between the parents based on their respective financial abilities. The process is similar to the one for a party's own attorney's fees:

The court will review both parents' Financial Affidavits.
If incomes and assets are similar, the judge will likely order the parents to split the GAL's retainer and ongoing fees 50/50.
If there is a significant financial disparity, the judge will allocate the cost proportionally. For example, a higher-earning parent might be ordered to pay 75% of the GAL's fees, while the lower-earning parent pays 25%.
In cases of extreme disparity, one parent may be ordered to pay 100% of the cost.

It is vital to remember that this is a separate and additional cost on top of your own lawyer's bills.

Common Questions and Misconceptions about Attorney's Fees in CT

The topic of legal fees is often surrounded by myths and confusion. Let's clear up some of the most common misconceptions.

FAQ 1: Is Connecticut a "loser pays" state for divorce? No, absolutely not. This is a myth imported from other areas of civil litigation. In family law, the award of fees is based almost entirely on need and ability to pay, not on who "wins" or "loses" the case.

FAQ 2: Do I have to be completely broke to get my fees paid? No. The standard is not destitution; it is about respective financial abilities. You might have a decent job, but if your spouse's income and assets dwarf yours to the point that you cannot afford representation on par with theirs, the court can still order an award. The goal is to ensure you can maintain the litigation, not that you are impoverished.

FAQ 3: What if my spouse is hiding assets or lying on their financial affidavit? This is extremely serious misconduct. If you can prove your spouse is being dishonest about their finances, it dramatically strengthens your case for an award of attorney's fees. Your attorney may need to conduct formal discovery (like depositions or subpoenas for bank records) to uncover the truth. You can and should ask the court to order your spouse to pay for the costs of that discovery, which were necessitated by their dishonesty.

FAQ 4: Can I get my fees paid if we settle our case out of court? Yes. The payment of attorney's fees is a standard point of negotiation in any comprehensive divorce settlement agreement. As part of the global resolution of all issues, you can negotiate for your spouse to make a lump-sum contribution toward your legal fees. This is a very common and effective way to resolve the issue without needing a judge to rule on it.

Conclusion: Leveling the Financial Playing Field in Your Divorce

The fear of being outmatched financially in a divorce is real, but Connecticut law provides a powerful remedy. C.G.S. § 46b-62 is a cornerstone of fairness in family law, ensuring that the outcome of your case is based on the merits, not the size of your bank account.

Key Takeaways to Remember:

The purpose of awarding attorney's fees is to ensure both parties have fair access to legal representation.
The decision is based on a two-prong test: the parties' respective financial abilities and the statutory alimony factors.
You can formally request fees during the case (pendente lite) through a motion, which is essential for funding the litigation itself.
The same legal standard applies to allocating the costs of a Guardian ad Litem or Attorney for the Minor Child.
The entire process hinges on a complete, accurate, and credible Financial Affidavit.

If you are concerned about divorce litigation costs ct and believe there is a significant financial disparity between you and your spouse, this is a critical issue to discuss with a legal professional. Understanding your rights under C.G.S. § 46b-62 is the first step toward ensuring you can protect your interests and achieve a fair and equitable resolution.