The winner pays the loser’s attorneys’ fees!

Massachusetts law allows a spouse who lost a costly and meritless series of motions to collect attorneys fees from the winning spouse, simply because the winning spouse was richer at the time of the divorce.

In divorce and family law cases, this “winner pays” rule sometimes applies not only at the expense of the winning spouses, but also at the expense of innocent third parties who prevail on legal motions, (like the innocent spouse’s employer), yet are ordered to pay the fees of the very divorce lawyers they were forced to fight in court.

In California and Massachusetts, the spouse who had more income or assets before the divorce is commonly ordered to pay the attorneys fees of the other spouse even when the “richer” spouse prevails on the relevant motions and legal issues, and the divorce leaves the nominally “richer” spouse under crushing support payments.

That’s true even when the divorce so ruins the once wealthier spouse (through alimony and child-support payments) that the spouse whose attorney receives the fees really is really more prosperous afterwards. (As noted above, in Massachusetts, child support alone equals 25 percent of gross income — and more than a third of net income — for just one child).

Non-parties (such as a spouse’s employer) subjected to intrusive demands for documents by an ex-wife’s attorneys may be ordered to pay those attorneys’ fees even when they prevail in quashing the subpoena for those documents. (The California Third District Court of Appeal ordered just that).