Shouldn't My Husband Pay My Legal Fees?

When does a Husband have to pay his Wife's legal fees in a divorce?

Not very often.

Although the rules of law set forth in Pennsylvania's Divorce Code are supposed to ensure a "fair fight" between divorcing spouses, more often than not, it's the wife who faces the greatest challenge in financing the litigation.

The reality is that a married woman usually has less access to money than the husband. Women often interrupt or delay their working careers to raise families or manage households. That causes a diminished earning capacity, resulting from a relative lack of work experience and employment skills.

So instead of using the politically correct, non-gender specific term "spouse," this blog post will often specifically refer to husbands and wives.

While there exist many two-income families with both spouses holding down responsible, well-paying jobs, there are many more marriages in which the wife has assumed a "subordinate" role in the workplace by being stay at home mothers or by working part-time jobs. Usually this arrangement is done by agreement of both husband and wife. 

In addition, one common characteristic of an unhappy marriage is the "controlling" husband. Without exception, in my experience, this control begins with the money and financial assets.

So how does the law protect a wife whose income or earning power is subordinate to her husband?

Initially, there is "alimony pendente lite," or APL for short, which is spousal support during the divorce litigation. As a rule of thumb, the amount of monthly support to which the subordinate spouse is entitled amounts to 30- to 40-percent of the difference between the incomes (or earning capacity) of the dominate spouse and the subordinate spouse.

APL is an automatic entitlement when someone has filed for divorce. The reason for the automatic entitlement is to help pay the subordinate spouse's legal fees, so as to establish a more level playing field. The challenge for many wives is that APL is supposed to pay not only their lawyers but also for their support and living expenses. Seeking APL is a must.

Beyond APL, another option is for a wife to tap into the marital assets, regardless of whose name in which the assets, property or money are deeded or titled.

A husband can tie up the family money (bank accounts) and assets ( his 401k, or the house he refuses to sell) for years by prolonging or delaying the divorce litigation. But if a wife goes to court and demonstrates her need for money to either support herself or pay her legal fees, she may obtain a premature or partial distribution of these marital assets, or force the sale of a house whose mortgage and upkeep is draining the family's marital estate and money, well before the divorce is finalized.

Expecting a husband to pay a wife's legal fees is a not a practical strategy.

The law does allow a wife to ask her husband to pay her lawyer fees, if there is a significant disparity in their respective incomes and if the wife has prevailed in the litigation. But this is not a common remedy.

For example, the Superior Court recently ordered a husband to pay $3,500.00 of his wife's legal fees (S.M.C. v. W.P.C., 2012 PA Super 92, April 24, 2012).  But in that case, he earned $22,000.00 a month to her $1,200.00 a month. And despite the 20-to-1 difference in income, he still only had to pay half of her $7,000.00 lawyer bill.