I get questions pretty frequently from clients and potential clients about getting the other party to pay for their attorney’s fees. There are different standards on awarding interim attorney’s fees while a case is pending, depending on what type of case it is.
In today’s topic, we will continue the discussion of interim attorney’s fee and when they are available in a divorce when there are no children.
Our divorce clients are typically concerned about having enough money to pay for their divorce. As a divorce attorney, I can state that I am also concerned about my clients having enough money to pay for my firm’s services.
We have previously tackled the topic of spousal starving when one spouse is at a disadvantage because they are the spouse who earns less money or has little to no access to funds.
Unfortunately, without counsel, most parties cannot gain access to the remedies available to them on temporary orders or effectively prepare their case for trial.
One possible solution to this problem is a request for interim attorney’s fees. Such a request can possibly help the spouse without access to funds attain them in order to retain an attorney or continue to fund their divorce case.
Divorce with No Children
Any request for interim fees in a divorce with no children begins under Texas Family Code section 6.502(4).
Under Section 6.502(4) of the Texas Family Code:
a) While a suit for dissolution of a marriage is pending and on the motion of a party or on the court's own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties:
(4) ordering payment of reasonable attorney's fees and expenses.
Procedure for Requesting Interim Attorney’s Fees
The procedure for obtaining interim attorney’s fees in a divorce with no children is as follows:
- Pleading for Interim Attorney’s Fees
The pleading or motion requesting interim attorney’s fees should simply involve a general request.
- Set the Motion for Hearing
General requests for interim attorney’s fees in motions and pleadings allow the attorney to recover fees on any available basis in the law.
- Present Facts at the Hearing
A trial court’s ruling that grants interim attorney’s fees must be supported by evidence. You will need to put on evidence and facts to give the court what it needs to give you want you want.
The Reasonableness of the Fees: Without expert testimony from the attorney regarding the reasonableness of the fees, there is insufficient evidence on which the court can base an award. Phillips v. Phillips, 296 S.W.3d 656 (Tex. App. —El Paso 2009).
Under Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.1997)
Factors that a factfinder should consider when determining the reasonableness of a fee include:
- The time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
- The likelihood that acceptance of the particular employment will preclude other employment. The fee customarily charged in the locality for similar legal services.
- The amount involved and the results obtained.
- The time limitations imposed by the client or the circumstances.
- The nature and length of the professional relationship with the client.
- The experience, reputation, and ability of the lawyer or lawyers performing the services.
- Whether the fee is fixed or contingent on results obtained or uncertainty of collection before legal services have been rendered.
The following are some case summaries that help clarify a request for interim attorney’s fees in a divorce with no children.
Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App. – Corpus Christi 1999, pet. denied).
This case was appealed after the judge ordered the husband to pay:
- temporary spousal of support of $8,000 and
- $27,000 per month in temporary attorney’s fees to his former wife.
In this case, the trial court first signed a final decree of divorce on January 30, 1996.
The wife appealed the property division, without contesting the granting of the divorce, and on July 10, 1997, the appellate court sent the case back to the trial court for a jury trial.
One of the issues of the husband’s appeal is that he and his wife were divorced and so the trial court’s new order for spousal support was not valid under the Texas Family Code.
The appellate court found that, “Because the suit for divorce thus remains pending before the trial court on remand at least to the extent that the division of the marital estate is incomplete, the trial court retains jurisdiction under sections 3.58(c) and 3.59 to issue temporary orders for Fay's support.” Herschberg v. Herschberg, 994 S.W.2d 273, 277 (Tex. App. 1999)
The appellate court also found that, “In the present case, temporary support is particularly appropriate, since the Husband maintained control over the vast majority of the marital estate and his Wife had a minimal ability to support herself without some access to the assets in that estate.”
Amount of Temporary Support and Interim Attorney's Fees
The appellate court stated that the “trial court has broad, though not unlimited, discretion in making temporary orders for support and attorney's fees during the course of divorce proceedings, and the trial court's order will not be disturbed absent an abuse of that discretion. Herschberg, 994 S.W.2d 273, 278 (Tex. App. 1999)
Needs of the Applicant vs. the Ability to Pay
The appellate court further stated that “…the award of temporary attorney's fees must be based on the needs of the applicant as weighed against the ability of the opposing party to pay such fees.” Herschberg, 994 S.W.2d 273, 279 (Tex. App. 1999)
May not make the Opposing Party Destitute
The trial court has authority by temporary orders to require the payment of such fees as long as there is a credible showing of:
- the need for attorney's fees in the amount requested and
- the ability of the opposing spouse to meet that need.
However, the trial court may not make the opposing party destitute in order to pay the applicant's support and fees.” Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App. 1999)
Grossnickle v. Grossnickle, 935 S.W.2d 830, 846-47 (Tex. App.—Texarkana, 1996, writ denied).
This case involved multiple appeals to the appellate court. Regarding interim attorney’s fees, the appellate court stated that:
“The trial court has great discretion in deciding whether to award attorney's fees to either party and in determining the amount of attorney's fees to be so awarded.
This same principle applies to whether the trial court should consider a party's payment of attorney's fees out of community funds in the division of the property.
Because the award of attorney's fees in a divorce case can be part of the property division, the trial court can award them to either party, regardless who is successful in the trial court or on appeal.” Grossnickle, 935 S.W.2d 830, 846 (Tex. App. 1996), writ denied (Oct. 16, 1997)
Court May Only Order Attorney’s Fees Out of Community Property
A “…trial court has no authority to direct one party to expend separate property funds on the other's behalf for such fees, because the sole authority of a trial court to require payment of attorney's fees lies in the court's authority to divide the marital estate.” Grossnickle, 935 S.W.2d 830, 847 (Tex. App. 1996), writ denied (Oct. 16, 1997)
In re Bielefeld, 143 S.W.3d 924, 930 (Tex. App. – Fort Worth 2004, orig. proceeding).
In this divorce case, after the husband agreed to pay $3,000 in interim attorney’s fees to his wife's attorney, the wife's attorney later filed a request for additional fees and expenses.
The trial court awarded the wife's attorney additional fees and expenses of $50,000. The husband failed to pay and the trial court later committed the husband to jail for contempt for failure to pay such amount.
In his appeal, the husbands complained, “that the commitment order is void because of the deeply rooted constitutional prohibition in Texas against imprisonment for a debt.”
The Court of Appeals denied the petition, and the husband filed a motion for rehearing.
On reconsideration, the Court of Appeals stated that, as “a general rule, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period until he or she complies with the order.”
An Order of Imprisonment for Failure to Pay a Debt is Void
However, the failure to comply with an order to pay a debt is not contempt punishable by imprisonment because of the Texas Constitution's prohibition, which states that, “No person shall ever be imprisoned for debt.” In re Bielefeld, 143 S.W.3d 924, 927 (Tex. App. 2004).
Child Support and Spousal Support are Exceptions to the Rule
The exception for child and spousal support obligations from the constitutional prohibition against imprisonment for “debt” has been extended to assessments of interim attorney's fees incurred to enforce orders for temporary spousal or child support. In re Bielefeld, 143 S.W.3d 924, 928 (Tex. App. 2004).
The current case was distinguished because, “the order for payment of attorney's fees and expenses to the wife's attorney in the instant case does not characterize the fees ordered to be paid as ‘temporary’ or for ‘spousal support’.” In re Bielefeld, 143 S.W.3d 924, 930 (Tex. App. 2004).
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