Requesting and Recovering Attorney Fees in Albuquerque
UNDERSTAND THE PROCESS OF REQUESTING AND RECOVERING ATTORNEY FEES DURING A DIVORCE CASE IN ALBUQUERQUE, NEW MEXICO
“They’re requesting attorney fees!?! They want ME to pay for the other lawyer’s fees!?!”
This is a PG version of a heated question that I often hear regarding attorney fees. The scene begins when the opposing attorney files a Petition and/or Motion and at the end of the pleading appear these ominous words: “Order Petitioner/Respondent to advance the attorney fees and costs incurred for bringing this action.”
A party can request virtually anything from the court. Whether the court will ultimately grant that request is an entirely different matter. I explain to the bewildered person sitting across the table that the request for attorney fees is standard, pro forma, language that appears on virtually every Motion/Petition that crosses a Judge’s desk. The copy and pasted language is by no means a slam dunk request. Essentially, the language is included at the end of the Motion/Petition to preserve the right to request attorney fees.
This all begs the question: Under what circumstances will the court order someone to pay the opposing party’s attorney fees?
Generally speaking, the judicial system requires each party to pay his/her own attorney fees. A party can only recover attorney fees when authorized by statute, court rule, or agreement that expressly provides for such a recovery.
For instance, Albuquerque, New Mexico courts cannot award attorney fees in relation to an Order of Protection. NM Courts are unable to do so because there is no statute or rule permitting the award of attorney fees for matters that fall under the family violence protection act.
NEW MEXICO LAW REGARDING ATTORNEY FEES IN DIVORCE CASE AND FAMILY LAW CASES
New Mexico statutory law authorizes trial courts to award attorney fees in domestic relation cases under NMSA 40-4-7(A). According to New Mexico law “[T]he central purpose of an award of attorney fees under Section 40-4-7(A) is to remedy any financial disparity between the divorcing parties so that each may make an efficient and effective presentation of his or her claims in the underlying divorce case.” Garcia v. Jeantette, 2004-NMCA-004, ¶ 19.
The primary test in New Mexico for determining whether the court will award attorney fees involves economic disparity between the parties, the need of one party for the advancement of attorney fees, and the ability of the other party to pay. In situations where economic disparity exists between the parties, to a degree that one party may be prevented from preparing or presenting an effective claim, the trial court has the discretion to award attorney fees in order to assist the needy party.
WHAT IS THE MOST IMPORTANT FACTOR REGARDING AN AWARD OF ATTORNEY FEES IN ALBUQUERQUE, NM?
In Albuquerque, NM, economic disparity between the parties is the single most important factor that the trial court considers in deciding whether to award attorney fees in a divorce case or domestic relations case. Alverson v. Harris, 1997-NMCA-024 ¶ 26.
The court also considers the parties’ access to financial resources, such as readily available “liquid assets” when exercising its discretion to award attorney fees. In this respect, the court examines the assets and financial resources that are available to both of the parties at the time of the trial. The court also takes into consider the parties’ respective incomes and ability to pay. Lastly, the court considers factors such as good faith attempts to settle and prior settlement offers, burdensome or unnecessary litigation expenses, the total amount of fees and costs spent by each party from community funds, and success on the merits.
After considering the parties’ relative financial positions, the court has wide discretion to order one party to pay all or any portion of the other party’s attorney fees. Generally speaking, the court will not award attorney fees when one party has serious financial needs, but the other party is financially unable to handle those needs.
In addition to economic disparity and financial need, the court often awards attorney fees based on misconduct, failing to follow prior orders, failure to provide requested information, bad faith conduct, or any other action that requires one party to inform the court about the other parties’ misconduct or failure to comply. In these situations, the court can award attorney fees for the cost of filing the necessary Motion, putting the judge on notice of the other parties’ deficiencies, as well as the expense of addressing the issue in open court.
NEW MEXICO RULES FOR REQUESTING AND RECOVERING ATTORNEY FEES
NM courts rely on Rule 1-054 and Rule 1-127, when awarding of attorney fees in New Mexico. According to these rules, when determining the appropriate award of attorney fees the court considers:
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Disparity of the parties resources, including assets and incomes;
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Prior settlement offers;
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The total amount of attorney fees expended by each party; and
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Success on the merits.
The assigned Judge has wide latitude when deciding whether or not to award attorney fees, and the specific amount that will be awarded.
Similar to any number of issues that arise in a family law courthouse, the Judge has wide discretion to award attorney fees, and the Judge’s ultimate decision will stand unless the Judge abuses her discretion by entering a ruling that is ‘clearly against the logic and effect of the facts and circumstances before the court.’
Ultimately, the Judge’s ruling will not be touched if reasons exist that support the Judge’s decision. In other words, the Judge has immense power to consider the factors discussed above, ultimately deciding if attorney fees will be entered, and the total amount that will be entered.
(505) SANCHEZ IS HERE TO ANSWER ALL OF YOUR QUESTIONS ABOUT REQUESTING AND RECOVERING ATTORNEY FEES DURING A DIVORCE CASE IN ALBUQUERQUE, NEW MEXICO
Do you still have questions about requesting and recovering attorney fees during a divorce case in Albuquerque, New Mexico? Understanding the process of requesting and recovering attorney fees in Albuquerque often requires the experience and knowledge that comes with years of courtroom practice.
For more than a decade, Sanchez has handled child custody all across Albuquerque, New Mexico, including: Rio Rancho, Santa Fe, Los Lunas/Belen, Gallup/Grants, Estancia/Socorro, and Taos. Matthew Legan Sanchez has the experience needed to handle your unique case. Sanchez can be reached by calling (505) SANCHEZ.
Requesting and recovering attorney fees in Albuquerque, New Mexico
