The short answer: It depends.
In Colorado divorce and custody cases, the “American Rule” (where each party pays their own fees) doesn’t always apply. The law provides two distinct methods for one party to be ordered to pay the other’s legal expenses.
1. The Financial Equity Rule (C.R.S. § 14-10-119)
This is the most common way fees are awarded. The court’s primary goal is to ensure that both parties have a “level playing field” and equal access to legal representation, regardless of their individual income.
- The Criteria: The judge examines the overall financial resources and the “ability to pay” of both parties.
- The Application: If there is a significant income disparity, the higher earner may be ordered to contribute to the lower earner’s fees.
- Example: If one spouse earns $200,000 annually while the other earns $35,000, the court will likely order the higher-earning spouse to pay a portion of the other’s attorney fees to ensure a fair legal process.
2. The “Bad Faith” Rule (C.R.S. § 13-17-102)
This type of fee award is punitive and focuses on a party’s behavior during the litigation rather than their bank account.
- The Criteria: Fees may be awarded if a party brings a claim that is frivolous, groundless, vexatious, or lacks substantial justification.
- The Application: If a party forces the other side to spend money defending against lies or legally baseless motions, the court can “sanction” the offending party by making them pay the resulting legal bills.
- Example: If a parent files an emergency motion falsely claiming the other parent is endangering the children, the court may order the dishonest parent to pay 100% of the fees the other parent spent to defend against that false claim.
Comparison of Attorney Fee Statutes
| Feature | C.R.S. § 14-10-119 | C.R.S. § 13-17-102 |
|---|---|---|
| Primary Focus | Financial Disparity | Litigation Conduct |
| Goal | Equality and Access | Punishment for “Bad Faith” |
| Common Trigger | One spouse earns significantly more. | Filing false or baseless motions. |
| Discretionary? | Yes, based on financial equity. | Yes, based on the nature of the claim. |
The Bottom Line
Whether you are seeking a contribution due to a lack of funds or seeking reimbursement because your ex-partner is being litigious, it is crucial to document all expenses. A Colorado family law attorney can help you determine which statute applies to your specific situation.