What Is an Attorney’s Fees Award in Arizona Family Court?

At the end of a family law case, the Court may order one party to pay all of, or a portion of, the other side’s attorney’s fees and costs. This is what is referred to as an “award of attorney’s fees.”

In Arizona family law, attorney’s fees are governed by A.R.S. § 25-324. Unlike many other areas of law, attorney’s fees in family court are not based on who “won” or “lost.” Instead, the Court looks at two factors:

1. The financial resources of each party; and

2. Whether either party acted unreasonably during the litigation.

   
   

The Arizona Statute: A.R.S. § 25-324

A.R.S. § 25-324(A) states:

“The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter…”

This statute gives Arizona family court judges broad discretion to award attorney’s fees when appropriate.

Attorney’s Fees Are Not About “Winning”

Many people assume that if they “win” at trial, they automatically get their attorney’s fees paid by the other side, or that because the other side did something “bad” (i.e. infidelity) that they should have to pay attorney’s fees as a punishment. But that is not how things work in Arizona.

A party will only receive an award of attorney’s fees if:

• there is a substantial financial disparity between the parties (meaning they have less financial resources and may be unable to afford their attorney); or

• the opposing party acted unreasonably.

  
  

The award of attorney’s fees is only available to parties who have actually had to pay attorney’s fees. If you are a pro per litigant (if you are representing yourself) you cannot get an award of attorney’s fees. Attorney’s fees are viewed as a form of “reimbursement” to a party. The fees are paid directly to that party to “reimburse” them for what they have paid to their attorney.

Financial Disparity Between the Parties

One of the biggest considerations under A.R.S. § 25-324 is whether one party has substantially greater financial resources than the other.

For example:

• one spouse may earn significantly more income;

• one party may control most of the marital assets;

• one party may have access to family financial support or business income; or

• one party may be unable to reasonably afford litigation expenses.

  
  

The purpose of a fee award in these situations is often to level the playing field so that both parties can meaningfully participate in the litigation.

Importantly, the Court does not require one party to be completely without income before awarding fees. The issue is relative financial disparity, not a complete lack of fianances/income.

Unreasonable Conduct Can Lead to Fees

The second factor is whether either party acted unreasonably during the litigation.

Examples of unreasonable conduct may include:

• taking exceptionally unreasonable positions;

• failing to participate in the case;

• refusing to provide required disclosures;

• filing unnecessary motions;

• intentionally delaying proceedings;

• refusing reasonable settlement offers;

• refusing to respond to settlement offers;

• making frivolous arguments;

• failing to comply with court orders; or

• needlessly increasing litigation costs.

  
  

The Court expects parties to act reasonably and in good faith throughout a family law case. When one party’s conduct causes unnecessary litigation or expense, the Court may order that party to contribute to the other side’s attorney’s fees.

The Court Can Consider Both Factors Together

In many cases, the Court considers both financial disparity and litigation conduct together.

For example:

• A financially stronger party who also litigated unreasonably is at significant risk of a fee award against them.

• Conversely, even where financial disparity exists, a Court may decline to award fees if both parties acted reasonably throughout the case.

  
  

These two factors may also cancel each other out: if Side A would be entitled to attorney’s fees because they earn significantly less, but Side B would be entitled to fees because Side A acted unreasonably, the unreasonable actions and financial disparity may cancel each other out and then neither party would receive attorney’s fees.

The analysis is highly case-specific and ultimately left to the discretion of the judge.

Attorney’s Fees Requests Must Still Be Proven

Even though A.R.S. § 25-324 permits fee awards, they are not automatic. The party requesting fees typically must:

• formally request attorney’s fees;

• present evidence of financial disparity and/or unreasonable conduct; and

• provide documentation supporting the amount of fees requested.

  
  

The Court then determines whether a fee award is appropriate and, if so, what amount is reasonable.

What is a “China Doll Affidavit”?

After the Court has determined one side is entitled to an award of fees it will issue an Order directing the receiving party to file a “China Doll Affidavit”. The term comes from the Arizona case Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183 (App. 1983), which established the requirements for proving the reasonableness of attorney’s fees. In family law cases, a China Doll Affidavit typically includes the attorney’s hourly rate, the work performed, the time spent on each task, and the total fees incurred so the Court can determine whether the requested fees are reasonable under A.R.S. § 25-324. The Court will then review the billing items, and determine the amount of the attorney’s fees awarded. The Court has complete discretion to determine the amount of the award. The Court may award 100% of the fees, but this is rare. The Court may also review each billing statement and only award fees for certain work performed.

Final Thoughts

When determining if a party is entitled to an award of attorney’s fees, the Courts in Arizona only focus on:

• whether there is a financial imbalance between the parties; and

• whether either party acted unreasonably during the litigation.

  
  

It is not about “winning” or “losing”, and it is not a penalty for bad behavior during the marriage.

If you are involved in a family law matter and think you may be entitled to attorney’s fees, we invite you to bring up the topic with your attorney, or book a consultation with our firm today!