The spouse who controls the money often assumes that control extends to the divorce: the other side cannot afford to litigate, so the case will settle on the controlling spouse's terms. Colorado law has a direct answer to that assumption.
The Fee Statute
C.R.S. § 14-10-119 authorizes the court, after considering the financial resources of both parties, to order one party to pay a reasonable amount for the cost to the other party of maintaining or defending the proceeding, including attorney fees. The purpose, as Colorado's appellate courts have described it, is to equalize the parties' status and ensure that neither is deprived of adequate representation because of a disparity in resources. The statute exists to level the playing field so the outcome turns on the merits rather than on who holds the checkbook.
What the Court Considers
The analysis is about relative resources, not fault. The court looks at each spouse's income, the property each will hold after the division, each spouse's ability to pay his or her own fees, and the reasonableness of the fees incurred. A fee award is not a punishment for bad behavior — Colorado has other statutes for that — and it is not automatic. A spouse who leaves the marriage with substantial income-producing assets may be expected to pay his or her own fees regardless of the other spouse's greater wealth.
Interim Awards Come Early
The statute's most important feature is timing. Fee awards can be ordered at the temporary orders stage, before the case is decided, so that both spouses can retain competent counsel and experts from the start. For a spouse without independent access to funds, an early motion for interim fees is often the first strategic step in the case. Courts can also order a spouse to advance the cost of experts — a business valuation, a forensic accountant, a vocational evaluation — when the case requires them and one spouse cannot fund them.
What the Economically Stronger Spouse Should Expect
A spouse with significantly greater resources should budget for the realistic possibility of funding both sides of the litigation, at least in part. That expectation should inform strategy. Prolonging the case, multiplying motions, or forcing the other side to litigate every issue increases the fees that the stronger spouse may ultimately be ordered to pay. Efficiency and reasonableness serve the paying spouse's interests as much as the receiving spouse's.
Fee Shifting Is Not the Same as Sanctions
Colorado has separate provisions that shift fees as a consequence of conduct rather than resources. Fees can be awarded against a party who brings or defends a claim that is frivolous or vexatious, against a parent who violates a parenting time order, and against a party who fails to comply with disclosure obligations or discovery. Those awards turn on behavior. The fee statute discussed here turns on need and ability to pay. The two operate independently, and a spouse can be subject to both.
Practical Advice
- If you lack access to funds, raise interim fees with counsel at the first meeting; do not wait
- Keep fees reasonable and well-documented; the court reviews the bills
- If you are the higher-resource spouse, litigate efficiently — it protects you on fees
- Address fees expressly in any settlement, including who pays for experts and any interim awards already made
Talk to a Denver Divorce Attorney Who Handles Complex Estates
Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on high-net-worth and financially complex divorce. Money buys lawyers. In Colorado, it is not supposed to buy verdicts, and the fee statute is how the courts enforce that principle.
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This publication is attorney advertising. It is educational information only, it is not legal advice, and it may not reflect the most current legal developments. Reading it does not create an attorney-client relationship. No attorney-client relationship exists until a conflicts check is complete and both parties have signed a written engagement agreement.
Read the full guide on DenverDivorce.com: Attorney Fees & Costs in Colorado Divorce.
