ARS 25-324 is the controlling statute for an award of attorney fees from one party to the other. In its current form, this law is being abusively applied and allows for rampant fraud and extortion. This law currently reads;
“25-324. Attorney fees
A. The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter or chapter 4, article 1 of this title. On request of a party or another court of competent jurisdiction, the court shall make specific findings concerning the portions of any award of fees and expenses that are based on consideration of financial resources and that are based on consideration of reasonableness of positions. The court may make these findings before, during or after the issuance of a fee award.
B. If the court determines that a party filed a petition under one of the following circumstances, the court shall award reasonable costs and attorney fees to the other party:
1. The petition was not filed in good faith.
2. The petition was not grounded in fact or based on law.
3. The petition was filed for an improper purpose, such as to harass the other party, to cause an unnecessary delay or to increase the cost of litigation to the other party.
C. For the purpose of this section, costs and expenses may include attorney fees, deposition costs and other reasonable expenses as the court finds necessary to the full and proper presentation of the action, including any appeal.
D. The court may order all amounts paid directly to the attorney, who may enforce the order in the attorney's name with the same force and effect, and in the same manner, as if the order had been made on behalf of any party to the action.”

Another version of the law is repeated under ARS 25-403.08 which reads;
"A. In a proceeding regarding sole or joint legal decision-making or parenting time, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing.
B. If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation."


A third version is embedded in ARS 25-504 (R) which reads;
“R. In any proceeding under this section the court, after considering the financial resources of the parties and the reasonableness of the positions each party has taken, may order a party to pay a reasonable amount to another party for the costs and expenses, including attorney fees, of maintaining or defending the proceeding.”

The original intent of this law was to help ensure that a poor parent could still afford to seek proper legal action without the restraint of unaffordable legal representation or to reimburse a parent when an offending parent created frivolous or harassing legal actions.
The average person would read the law and would interpret it to mean that unless they take a fairly unreasonable legal stance, that they will not be held responsible for any of the opposition’s legal fees.

The AZ Court system interprets this law in a very different manner. The manner in which AZ courts apply this law is basically this; as long as both parties have taken a partially reasonable position, then the deciding factor for an award of attorney fees is reduced to looking solely at the disparity of incomes between the parties. In short, the higher wage earner will pay.

Sadly, under the current interpretation and application of ARS 25-324, 25-403.08 and 25-504(R) by the AZ Court system, this law lends itself to be an instrument of abuse.

This allows for the lower earning parent and their attorney to extort and intimidate the higher earning parent from taking/defending reasonable legal positions because to do so will lead to severe financial hardship for the higher earning parent. In short, even though the parent is in the right, it will cost them too much to defend/win their position, simply because they earn more than the other parent.

A case example of this is CA-CV 12-0448, in which the higher earning parent won their case at the Superior Court level and the Appellate Court level, but still had to pay all of the attorney fees of the losing parent, simply because they earned more money.

With a guaranteed paycheck for the attorney who represents a lower earning parent, they are encouraged to increase litigation, refuse settlement, and even to create fraudulent billing statements (China Doll Affidavits).

Previous versions of this law required the paying party to reimburse the other party for costs actually paid. The current law, in Paragraph D allows for an attorney to seek collection directly. This provision and the court’s interpretation allows for further abuse, fraud and persecution of the higher earning parent.

Under the “actual costs paid” version, the client and their attorney were encouraged to keep litigation costs down, negotiate for reasonable settlement of the legal issues and when legal fees were awarded, negotiate for reasonable payment terms. With the current application of these laws the opposite now occurs. Under the current version the client and their attorney are incentivized to refuse all offers of settlement, to inflate litigation costs, to refuse reasonable installment payments and to file for asset/account seizure.

Direct enforcement of the payment by the attorney empowers and encourages the attorney to seize accounts and to keep such seizure orders in place until the full amount is paid, thus creating no incentive to accept reasonable payments. Such asset seizure allows an attorney to grab monies needed by a parent to pay for personal living expenses, their children’s living expenses, child support and/or spousal support payments. Of course, when a parent cannot access the funds needed to make such payments, this creates even more legal troubles for a parent and potentially even more debt from future attorney fee orders. The current version of these laws creates the environment for a “perfect storm” scenario of ever-increasing debt and total loss of reasonable living, simply for being deemed the ‘higher earning parent’.

This type of ‘stormtrooper’ collection activity is expressly forbidden by the Fair Debt Collection Practices Act, but as can be readily seen, is encouraged by the AZ court system.

When a law is written, the wording of that law needs to be carefully constructed so that the law will not have harmful repercussions. Unfortunately, this version of ARS 25-324 fails miserably at preventing the abusive use of the law.

ARS 25-324 needs to be re-written to strictly limit the award of attorney fees to cases only when one party has violated one of the provisions stated in Paragraph B and to state a requirement of an attorney to accept payments, just as any other creditor, as outlined by the Fair Debt Collection Practices Act.

ARS 25-403.08 and 25-504(R) should be deleted as redundant.

Please help change these laws by writing our state legislators and encourage them to sponsor bills in the House and the Senate during the upcoming legislative session, (Fall 2014)