Attorney’s Fee awards are regularly awarded by judges in family law cases.
But to get the judge to order the other PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party to pay your attorney’s fees, you must first qualify for them.
When will a Court order an award of attorney’s fees?
The Arizona legislature has allowed the Court to award attorney’s fees in a family court proceeding in the following instances:
Where a party takes an unreasonable position and/or there is a disparity of financial resources between the parties.
Most prominently and commonly, a party may seek attorney’s fees under A.R.S. § 25-324(A). This requires the PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party seeking fees to show either a disparity of financial resources or that the party took unreasonable positions in the proceedings. This provision accounts for the vast majority of attorney’s fees awards in family court. We estimate it is the BasisA tax term describing the price a taxpayer paid to acquire a property. When a property or asset is sold, basis is deducted from the selling price to determine whether there is a taxable gain or loss. For items awarded in a divorce, those items are not taxed as part of the divorce…Read more about Basis for approximately 90% of the attorney’s fees that are awarded in family law cases.
Litigants who hire an attorney expecting that the other party will be ordered to pay their attorney’s fees should be cautious in doing so. The text of A.R.S.A.R.S. is an abbreviation for Arizona Revised Statutes. It is most commonly used as a reference. For example, if one types in, ARS 25-403 into Google or Bing, they'll likely be returned with links to Arizona's statute on the best interests factors and articles, web sites, and…Read more about A.R.S. § 25-324(A) asks judges to award fees “from time to time,” suggesting the legislature wants such awards to be granted sparingly.
Be aware that there is no prevailing party legal standard here. This provision can apply even where the unreasonable party prevails. For example, in Greenbank v. Vanzant, 250 Ariz. 644 (App. 2021), a case involving a mother and a grandmother, the mother successfully dismissed a prior court order regarding visitation because Arizona had lost the JurisdictionThe authority of a Court to hear and decide a certain issue. Each court’s ability to hear cases are defined either by a Constitutional provision, or, more commonly, by an Act of Congress (for Federal courts) or the state legislature (for state courts).Read more about Jurisdiction it once had gone to another court. But because the Mother had repeatedly violated the order before the jurisdiction changed, the Arizona Court of AppealsThis is the Court that hears appeals and special actions from the decisions made by the superior court. A panel of three judges reviews each appeal and issues a ruling. The Arizona Supreme Court is the only state court higher than the Court of Appeals.Read more about Court of Appeals still ordered her to pay attorney’s fees. See also Quijada v. Quijada, 246 Ariz. 217, 222, ¶ 15 (explaining that the award of attorney’s fees under A.R.S. § 25-324 does not “turn upon a party’s success or failure”) meaning that the outcome will not be given weight in determining if fees should be awarded.
Finally, a prior Arizona law required the better-resourced party to pay the attorney’s fees for the lesser-resourced party. That law has been repealed. While a disparity in financial resources is a basis for awarding attorney’s fees, it is no guarantee. In Myrick v. Maloney, 333 P.3d 818 (Ariz. App. 2014) the Court of Appeals clarified that, under the current statute, the Court has the discretion to deny a request of attorney’s fees, even where a disparity of IncomeAs defined by A.R.S. § 25-500(6), “any form of payment owed to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability payments, payments pursuant to a pension or retirement program and interest.” See also child…Read more about Income exists.
Where a party files a petition in bad faith.
But A.R.S.A.R.S. is an abbreviation for Arizona Revised Statutes. It is most commonly used as a reference. For example, if one types in, ARS 25-403 into Google or Bing, they'll likely be returned with links to Arizona's statute on the best interests factors and articles, web sites, and…Read more about A.R.S. § 25-324 has another provision. Under A.R.S. § 25-324(B), when the Court finds that a party filed a PetitionThis is a court document that someone files to start a case.Read more about Petition that was “not filed in Good FaithA general term that describes a party acting appropriately in Court. The requirement that parties act in good faith is meant to prevent parties from misusing the Court to abuse or harass the other party. If one fails to act in good faith, they can be assessed attorney's fees or…Read more about Good Faith,” “not grounded in fact or based on law,” or “filed for an improper purpose,” the Court must award attorney’s fees. For example, in Tanner v. Marwil, 250 Ariz. 43 (App. 2020), the Husband filed for divorce in Arizona, even though he knew that neither he nor his Wife were living in Arizona; thus, his petition falsely stated they were domiciled in Arizona. In that case, the Court of AppealsThis is the Court that hears appeals and special actions from the decisions made by the superior court. A panel of three judges reviews each appeal and issues a ruling. The Arizona Supreme Court is the only state court higher than the Court of Appeals.Read more about Court of Appeals held that the TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial court must award attorney’s fees in that situation because Wife had to engage in the Arizona court system solely because of Husband’s Bad Faith FilingA filing that serves no legitimate purpose. Usually, people file in bad faith to harass the other party, drive up costs, or because they are angry with the judge, the opposing attorney, or the opposing party (or perhaps all three). A bad faith filing can result with the offending…Read more about Bad Faith Filing.
Where a party violates a parenting time or visitation order.
Under A.R.S. § 25-414(C), in an ActionThe starting of a new case or new round of litigation. An action always starts with filing a Petition.Read more about Action to enforce a Parenting TimeThis is what it sounds like—this is when it’s the parent’s time with the child(ren). See A.R.S § 25-401(5). Prior to 2012, it was known as physical custody.Read more about Parenting Time or visitation order, “the court in its discretion may award court costs and attorney fees to the custodial parent.” Again, it is not required. The Court “may” order them, but when one has to go to Court to enforce parenting time, the chances of getting fees increases.
Another Arizona statute requires the Court to award attorney’s fees if it finds “the parent has unreasonably denied, restricted, or interfered with court-ordered Parenting TimeThis is what it sounds like—this is when it’s the parent’s time with the child(ren). See A.R.S § 25-401(5). Prior to 2012, it was known as physical custody.Read more about Parenting Time.” See A.R.S. § 25-408(J). This provision, however, is found in the RelocationWhen a parent moves where the child is living. Relocations of more than 100 miles or out of state generally require either the other parent’s permission or a court order.Read more about Relocation statute and likely is limited to situations where a parent interferes with the other parent’s time via a relocation.
Where a party has committed litigation misconduct.
A.R.S. § 25-415(A) specifically defines litigation misconduct and limits it to situations where a party knowing lied in a PetitionThis is a court document that someone files to start a case.Read more about Petition, knowingly falsely accused the other party of making a false claim or violated a DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery or DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about Disclosure order.
Where a party has prevailed on a modification or termination of child support petition.
Family law’s only prevailing party standard is reserved for Child SupportBy law, every person has a duty to support their biological or adopted children. See A.R.S § 25-501(A). This applies without or without a court order. The term “child support,” though, generally refers the Court-ordered amount one parent is required to pay to the other parent.Read more about Child Support modifications and terminations. See A.R.S. § 25-503(E). Even then, the legislature has only authorized that the court “may” award fees to the prevailing party.
Of course, this raises the question of who “prevails” in a child support case. In Clark v. Clark, 239 Ariz. 281 (App. 2015), the father filed for and successfully received a downward ModificationAn action made to change a current court order. Modifications commonly involve parenting time, legal decision-making, child support, or spousal maintenance.Read more about Modification of his Child SupportBy law, every person has a duty to support their biological or adopted children. See A.R.S § 25-501(A). This applies without or without a court order. The term “child support,” though, generally refers the Court-ordered amount one parent is required to pay to the other parent.Read more about Child Support, but the mother’s counterpetition for $20,000 in child support ArrearsA more informal way of saying “arrearage.” See Arrearage.Read more about Arrears was also granted, and the trial court awarded her attorney’s fees. Father appealed arguing he should have been awarded attorney’s fees as the prevailing party. The Court of Appeals responded that there was no clearcut winner. And, even if Father had won, nothing prevents the Court from awarding fees to the non-prevailing party if the Court is so authorized by another statute.
Where a payor of support does not comply with Court orders.
A few statutes deal with ways in which a person assigned to pay child support or Spousal MaintenanceThese are payments made from one spouse to another when one spouse cannot financially meet their reasonable needs on their own. The law permits spousal maintenance (or alimony as it’s called in other states) for several reasons—to help maintain the lifestyle the parties enjoyed…Read more about Spousal Maintenance might be held responsible for paying the other party’s attorney’s fees for violating certain orders. These include the following:
- Failing to obey an order of assignment under A.R.S. § 25-504(H). This can also apply to payor’s employer. A.R.S. § 25-505.01(M).
- Failing to pay Court-ordered support under A.R.S. § 25-1253.
- Failing to update the Court regarding one’s new employment under A.R.S. § 25-504(K).
- Failing to AnswerAn Answer is also known as a Response to a Petition; it sets forth the Respondent’s issues on a Petition.Read more about Answer a written request for certain information (listed in A.R.S. § 25-513(A)) from the DepartmentAs referenced in A.R.S. § 25-500(5), “Department,” when used in the child support laws, refers to the Arizona Department of Economic Security.Read more about Department of Economic Security under A.R.S. § 25-513(C).
Where a party had to come to Arizona to enforce an out-of-state Parenting PlanThis is the Court order that contains the legal decision-making and parenting time orders. It sets forth the parenting time schedule and includes the other custody orders.Read more about Parenting Plan. Most commonly, this involves a situation of parental kidnapping where a parent has illegally removed a child from another state or JurisdictionThe authority of a Court to hear and decide a certain issue. Each court’s ability to hear cases are defined either by a Constitutional provision, or, more commonly, by an Act of Congress (for Federal courts) or the state legislature (for state courts).Read more about Jurisdiction to Arizona. In our experience, police in Arizona usually require a court order from an Arizona court directing them to remove the child before they will act. This can be time-consuming and costly. A.R.S. § 25-1062 requires the prevailing party in these cases be awarded their attorney’s fees unless the other party can prove that such an award is inappropriate. If the state must get involved, the responding party may have to pick up their attorney’s fees as well under A.R.S. § 25-1067.
Where a party in a custody case has insufficient resources and needs attorney’s fees to hire an attorney for litigation. Authorized by A.R.S. § 25-403.08, this request must be made in time to allow for adequate preparation, and the party requesting must show a disparity in income. This provision does not apply to a final award of attorney’s fees.
Where a party’s misconduct invokes Arizona’s jurisdiction in a child custody proceeding. Generally, this involves a parent who, in violation of another jurisdiction’s laws or Parenting Plan, brings a child to Arizona and then tries to assert Arizona has jurisdiction. In that instance, the Arizona court can decline jurisdiction on the BasisA tax term describing the price a taxpayer paid to acquire a property. When a property or asset is sold, basis is deducted from the selling price to determine whether there is a taxable gain or loss. For items awarded in a divorce, those items are not taxed as part of the divorce…Read more about Basis of misconduct and assess fees under A.R.S. § 25-1038(C).
Failure to comply with the Rules of Procedure. When a party fails to comply with discovery requests or fails to participate in the Court process, they can be assessed with attorney’s fees. See ARFLP Rules 65 and 76.2. Therefore, hiring a knowledgeable attorney is important so that you do not put yourself at risk to pay. In the same light, if you are unrepresented and do not comply with the Rules of Procedure, you can still be assessed attorney’s fees. The judge will not forgive you for misunderstanding the law, you are held to the same standard as an attorney.
