My Spouse’s Divorce Papers Say She is Asking Me To Pay Her Lawyer! Will I Have To Pay Her Lawyer?
The answer is sometimes in Texas, you can be ordered to pay for your spouse’s lawyer.
Texas Family Code §6.502(4) says that after notice and hearing, upon the motion of one of the parties or on the court’s own motion, a court may render orders “for the preservation of property and protection of the parties as deemed necessary and equitable” including: ordering payment of reasonable attorney’s fees and expenses.
The court will need to make its decision of whether you will pay your spouse’s legal fees by balancing: the need of one party to access community funds to pay attorneys’ fees and other litigation expenses considered against the opposing spouse’s ability to pay those expenses out of community assets. Herschberg v. Herschberg, 994 S.W.2d 273, 278-79 (Tex. App.—Corpus Christi, 1999, pet. denied). A court, will consider whether one spouse has greater access to community property but will not make a party destitute in order to make such funds available to the requesting party.
Interim attorney’s fees means you are being asked to pay for the lawyer WHILE the case is going on, rather than paying your spouses lawyer at the END.
The lawyer will need to show the court why the certain amount of fees requested are reasonable and from what source the fees will come.
The case law notes that there is no rigid requirement that the number of hours or the hourly rate must be introduced to support a finding that attorney’s fees are necessary and reasonable. Brockie v. Webb, 244 S.W.3d 905, 909(Tex. App. Dallas 2008).
The spouse can be ordered to pay an interim attorney fee amount and also be authorized to incur debt in order to pay this amount. This can include traditional loans from a financial institution, loans against 401(k) accounts, loans secured by nonliquid property, and cash advances against a credit card.
The spouse can pay a fixed amount on a periodic basis from income received from employment or any other source during the case.
The spouse can be ordered to sell nonliquid property and forward the proceeds to the attorney as interim fees.
How To Avoid Paying Your Spouse’s Attorney’s Fees
Certainly, having a lawyer advocate for you on this issue can help prevent your requirement to pay. However, it is the court’s choice, so even having your own lawyer is not a guarantee that you will avoid paying fees. If you hire our Firm, our first plan will be to show that paying your spouse’s fees is not something your finances can presently handle. Or, we can show that there are other methods for your spouse to pay her own legal fees.
If you need help with either asking for attorney’s fees during a divorce, or trying to avoid them, we can help you. 1-888-646-5808. This number calls a lawyer directly.
According to Family Code Section 105.001(a)5, in a custody case not involving divorce you can only be ordered to pay your spouse’s attorneys fees during temporary orders IF it is done to protect the safety and welfare of the children in the case.
This rule does not mean this is the only circumstance in which attorneys fees can be ordered from one spouse to another. Rather, this is the only circumstance in which attorneys fees can be awarded on temporary orders in a custody case not involving divorce.
An Example of Someone Being Ordered to Pay Spouse’s Attorney’s Fees
Not long ago, over in Austin, a wife was ordered to pay interim attorneys fees for her husband in the amount of $25,000.
You can read this case where that happened here.
In that case, because such a high amount of attorney’s fees was awarded, the wife actually appealed to a higher court, saying that this was not fair, and ultimately the wife won, and did not have to pay the fees after all.
Texas Family Code on Paying Interim Attorney’s Fees During a Custody Case
Sec. 105.001. TEMPORARY ORDERS BEFORE FINAL ORDER. (a) In a suit, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order:
(1) for the temporary conservatorship of the child;
(2) for the temporary support of the child;
(3) restraining a party from disturbing the peace of the child or another party;
(4) prohibiting a person from removing the child beyond a geographical area identified by the court; or
(5) for payment of reasonable attorney’s fees and expenses.
Megan Victoria Cook
Texas Divorce Lawyer & Managing Partner of Cook & Cook
Email Megan at [email protected]