Can my ex-wife sue for attorney’s fees if I’m pro se?

I make more than my ex-wife and therefore any court action while I was represented required me to pay a portion of her attorney fees (CO C.R.S 14-10-119). However, if pro se, would this still apply as I “no longer have an advantage to maintain a case” (ie out-spend her in litigation)? After 2 years of divorce and numerous motions filed by her, it’s time to move on.

Asked on March 18, 2011 under Family Law, Colorado

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Awarding attorneys fees is different in an action for divorce than is another type of lawsuit. In other types of suits attorney fees are awarded based on the merits of the case. But in a divorce proceeding, fees are awarded either on the basis of ability to pay (finances) or if one of the parties is intentionally being an obstacle to resolving the issues in the divorce (groundless and frivolous awards). 

You are correct that under C.R.S. §14-10-119, awards of attorney fees are based upon the parties having a lack of financial parity such that the Court can order a financially advantaged spouse to pay some portion of the financially disadvantaged spouse’s “reasonable” attorney fees and costs. Did you see the word "reasonable" here?   Just because one spouse earns more than another does not mean the Court will award attorney fees.  Although it is within the court's discretion to award in any event.  Having an attorney does not necessarily mean that you can not pay attorney's fees and I would not go pro se just to try and move in that direction.  But I would take a look at her actions and motion making.  If her actions are tantamount to being bad faith - acting in an unreasonable manner or just being litigious for the sake of being litigious - then maybe you can be awarded “groundless and frivolous” attorney fees.   Hey, you never know.


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