Generally, the purpose of an attorney’s fee award in dissolution of marriage cases is to ensure that both parties have similar access to counsel and can thus fight the action on nearly equal footing. Thus, in a case where one party is in a far superior financial position, that party may be ordered to pay part or all of the other party’s attorney’s fees.
However, there is an exception to the above general rule where one party or his or her attorney has engaged in misconduct causing unnecessary litigation or has engaged in litigation brought in bad faith. In those situations, attorney’s fees are awarded as a punitive measure.
For example, even though a wife is in a poor financial condition compared to the husband, she still can be ordered to pay part or all of the husband’s attorney’s fees caused by her misconduct, such as interfering with the husband’s parenting time with the children in violation of a court order. Also, that same wife can be denied an award of attorney’s fees to which she would otherwise be entitled if the court determines that an action filed by her is frivolous or brought primarily to harass.
In addition, attorney’s fees can be assessed against that wife’s attorney upon a specific finding by the court that the attorney engaged in bad faith litigation. However, such an award against the attorney requires the court to provide an opportunity to be heard and to make specific findings of fact and specific findings of bad faith on the part of the attorney.