Will I Have to Pay My Own Attorney Fees if I Get a Divorce in New Mexico?A common worry of people who feel trapped in bad marriages is their lack of financial ability to get out. New Mexico law recognizes that when spouses have different levels of economic means, attorney fees may be shifted. These laws are designed to empower those of lesser means to present their cases fairly despite their lack of income or assets.

In our society, the general rule is that each party to a lawsuit pays his or her own legal costs unless there is a law, rule, or agreement providing otherwise. This is known as the “American rule” for attorney fees.

Fortunately, New Mexico provides for attorney fee awards in many types of family law cases, including general domestic relations matters, support cases, and custody cases.

Domestic relations cases, by law, include marriage dissolution, property division, child custody matters, and spousal support. In these types of cases, family courts have the authority to assign the expenses of the proceeding in a way that “ensure[s] either party an efficient preparation and presentation of his case.” N.M.S.A. § 40-4-7(A).

Child support cases carry their own provision for attorney fees. In these cases, courts have the power to assess many expenses against a person in default on child support, including filing fees, attorney fees, and other costs. A judge may even require the paying party to pay opposing counsel directly.

Similarly, child custody cases give judges the ability to award “necessary and reasonable expenses . . . including costs . . . and attorney’s fees” to the prevailing party. In fact, this type of award is mandatory unless the person paying the fees “establishes that the assessment would be clearly inappropriate.” Under New Mexico case law, judges in custody cases should grant attorney fee requests liberally when economic disparity is present: “It is important for trial judges to be liberal in awarding attorney’s fees . . . where the economic disparity between the parties and the cost involved in pursuing the action are so great that participation becomes economically oppressive to one party.” In determining the economic disparity, courts consider not only the income of the parties but also their respective assets.

Additional factors that New Mexico courts consider in determining attorney fee requests include the following:

  • The nature and character of the litigation;
  • The amount involved in the case;
  • The importance of the litigation;
  • The attorney’s experience, standing, and ability; and
  • Customary legal fees in the community.


Many dynamics may affect the payment of attorney fees in a New Mexico dissolution proceeding. If you are contemplating or currently confronted with a divorce proceeding and have questions about attorney fees, the Lightning Legal Group is willing to help. Please contact us at (505) 247-2390 for a free consultation.


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