Can My Spouse Be Ordered to Pay My Attorney Fees in Montana?

Yes, a Montana court can order your spouse to pay some or all of your attorney fees, and it can do so while the case is pending. Whether it will depends on both spouses' finances and the judge's discretion. The authority comes from one short statute, MCA § 40-4-110. This page, part of our Montana Divorce Guide, goes through what that statute says and what a request involves.

What the Statute Says

Section 40-4-110(1) reads, in part: "The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment."

Subsection (2) states the reason for the rule: "to ensure that both parties have timely and equitable access to marital financial resources for costs incurred before, during, and after a proceeding." The idea is access. When the family's money sits mostly with one spouse, the statute gives the court a way to keep the other from going through the case without help.

Fees During the Case, Not Only at the End

It is easy to assume fees are sorted out only in the final decree. The statute is broader. "From time to time" and the word "timely" in the purpose clause both point to orders made while the case is under way, sometimes called interim fees. Costs incurred before the petition was filed and after judgment are expressly included.

How a request is presented and when it is heard depends on the court. In Missoula County, the local rules say that where attorney fees are requested, "there must be competent evidence submitted to the Court from which the Court can determine reasonable attorney fees," and that the party seeking fees files and serves an affidavit itemizing the claim, to which the other side may object and request a hearing within ten days (Fourth Judicial District Local Rule 21(C)). The same rule says that in a contested proceeding, receipt of evidence on attorney fees is deferred until a final decision on the merits. How a judge applies that local rule alongside the statute's allowance for orders "from time to time" is a question to raise with a lawyer who practices in that court.

The Showing Required

The statute sets out two requirements in its own words. The court must consider "the financial resources of both parties," and the amount must be "reasonable." A request therefore rests on two kinds of evidence:

• Each spouse's finances. Income, assets, and debts on both sides. Much of this is already required in the case: each spouse serves sworn disclosure and income and expense declarations (MCA §§ 40-4-252 and 40-4-253). See financial disclosure in a Montana divorce.
• The fees themselves. An itemized account of the work done and the charges, so the court can judge what is reasonable.

The statute does not make the award turn on who filed, who wants the divorce, or who behaved badly. It also does not say that a spouse with fewer resources always receives fees, or that a spouse with more always pays. Montana courts have interpreted the statute in published decisions, and the result in any case depends on its facts. Treat a fee award as possible, not as a plan for paying your lawyer.

Other Ways Fees Get Paid From Marital Funds

A court order is one route. There are others.

• The exception in the restraining order. The automatic economic restraining order restrains both spouses from transferring or disposing of marital property, except, among other things, "for the purpose of paying a reasonable amount for professional fees and costs" relating to the proceeding (MCA § 40-4-126(1)). Each spouse may use marital funds for reasonable fees. That is not permission to drain an account.
• Agreement. Spouses can agree on how each side's fees will be paid as part of their settlement.
• Temporary support. Either spouse may move for temporary maintenance or a temporary family support order while the case is pending (MCA § 40-4-121(1)). That is support for living expenses, not a fee award, but it affects what each spouse can afford. See temporary orders during divorce.

One narrower fee provision sits inside the restraining order itself. When a party gives notice of a proposed extraordinary expenditure and the other objects, the court "may award reasonable attorney fees if a party makes an unreasonable request for or an unreasonable objection to the proposed action" (MCA § 40-4-126(2)).

If You Are the Spouse With More Resources

The statute cuts both ways, and this page is for either spouse. If you are asked to contribute to your spouse's fees, the same two questions apply: what the financial resources of both parties actually are, and whether the amount requested is reasonable. You are entitled to see the itemization and to be heard. Complete and accurate disclosure serves you here, because the court decides on the picture it is given.

The purpose clause speaks of equitable access for both parties. Spouses are free to agree early on how each side's reasonable fees will be met from marital funds, which settles the question without a motion.

Practical Steps

• Raise the question at your first meeting. A lawyer can tell you whether a request fits your facts. See how divorce lawyers charge.
• Gather the financial records that show both incomes and the accounts each of you controls.
• Keep your fee statements. An award has to be supported by an itemized record.
• If you cannot afford a lawyer at all, look at free and low-cost divorce help in Montana.

For how fee awards fit with the other money questions a decree decides, see attorney fees in a Montana divorce.

This page explains Montana law in general as of the 2025 Montana Code Annotated and the current Montana Rules of Professional Conduct. It is not legal advice about your specific case.