This past week I had an opportunity to meet with a woman who came in to the Law Office of Bryan Fagan, PLLC to tell me about a divorce petition that she was having to respond to. She was served with divorce papers two days earlier and she was upset. The majority of our conversation was spent with her listing a litany of offenses that her husband had committed against her during their years of marriage. She completed her list of offenses by not asking, but telling me, that she would demand that her spouse pay her attorney’s fees in this case.
We all are aware that hiring an attorney and getting a divorce is not the most inexpensive activity that you will ever engage in. There is no use in trying to deny that. This woman I was meeting with was a stay-at-home mom who had not worked in some time. On top of that her husband controlled the family finances and she had little to no access to the checking account of the family. So not only was she demanding that her spouse pay her lawyer fees out of fairness- but also out of equity.
I thought this would be an interesting and relevant topic to discuss in today’s blog post. How common is it for your soon to be ex-spouse to pay your attorney fees in a divorce case in Texas?
The impact of community property on your ability to be awarded attorney’s fees in your divorce
When it comes to dividing up income, assets, property and debts in a divorce case, a judge would be bound by the Texas Family Code to do so in a just and right manner. This means that equity, fairness and a taking into account of all the circumstances of your case are important and relevant to that decision.
The presumption under Texas family law is that all property owned by spouses at the time of a divorce is community property. This means that it is subject to being divided up in their divorce. If you want to overcome this presumption in your own divorce you must provide clear and convincing evidence that a piece of property is rightfully part of your separate estate. Your spouse may do the same when it comes to his own property. Keep in mind that, despite what many people who come in to talk to me about their divorce case believe- it does not matter whose name is on the bank account, brokerage account or any other type of title to an asset. You can name the account or property anything you want, but ultimately it matters when the property came into your ownership as far as rights to the property are concerned.
What happens if you don’t have access to money to pay for an attorney?
The situation that I detailed about regarding our office’s potential client not having access to the money in her checking account is not uncommon. Many spouses, willingly or unwillingly, have little to no say over the finances in their home. As a result, their spouse holds the keys when it comes to where and how money is spent.
If you are in a position where you have absolutely no access to money and you cannot afford to pay the retainer for a family law attorney to represent you there is a path for you to get representation. You can request that a judge issue orders for your spouse to pay your retainer fee at the outset of your divorce if you truly do not have any money to pay for an attorney on your own.
Interim attorney fees during a temporary orders hearing
The process of requesting interim attorneys fees, the kind that I just mentioned, would be done at a Temporary Orders hearing. Among your other requests, you can ask that your spouse pay a set amount of money towards your attorneys fees for as long as your case lasts. This would be a temporary order that both sides and their attorneys would sign.
A judge would be most apt to grant this request if you do not have access to money or have very limited access. If you are disabled, do not work or stay home to help raise your children this would encompass your situation. Even if you do work, you can be awarded interim attorney’s fees if your spouse earns significantly more than you. Think about a situation where you work as a receptionist and your spouse works as a physician. This would also speak to the future income earning potential that you and your spouse possess. A doctorate in medicine boosts your spouse’s income earning potential much more than your associate’s degree.
The other major subject that comes up when attorney’s fees are being paid for your spouse in a divorce is your own bad behavior that has led to the filing of the divorce. For example, if you have been violent in the home and your spouse has had to file for divorce as a result of that violence it is likely that a judge would order you to pay your spouse’s attorneys fees if he or she asks for this in his or her divorce petition.
Selling community property in order to pay for your spouse’s attorney’s fees
Wait a minute, your spouse may respond. While he or she is wealthy, most of their wealth is held up in investments and property like real estate. As a result your spouse could argue that they are “cash poor” and unable to afford to pay your attorney- not to mention their own. This may seem like a loophole- one you are worried that your spouse can escape through. What would the result of this situation likely be in court?
If you find yourself in a similar situation to the one I outlined above, fear not. A court can review the circumstances and order that your spouse sell any community property that is available for sale in order to pay for your attorney’s fees. Extra property that is not essential to their business or other ventures can be sold off in an effort to make sure that you have an attorney during your case.
Having attorney’s fees paid through mediation
A final method to work towards having your spouse pay your attorney’s fees is in mediation. You will likely attend mediation twice in your divorce case: the first time will be before a temporary orders hearing and the second time will be before a trial. You can negotiate to have your spouse pay your attorney’s fees as a part of your settlement terms. Interim attorneys fees would be a part of your temporary orders. If you have not had your spouse pay your attorney’s fees to that point, you can negotiate for a lump sum payment of fees in your either installments or a lump sum.
The key to winning attorney’s fees in your divorce: experienced representation
If your goal is to have your attorney’s fees paid by your spouse then you should absolutely seek experienced representatives, like those with the Law Office of Bryan Fagan, PLLC. It is common to ask for attorney’s fees but it is not common to have them awarded. Your attorney can counsel you on how to do so in mediation and can craft a winning argument for you in a temporary orders hearing or trial if your case were to make it to that point. Do not rely on an inexperienced attorney simply because he or she is inexpensive. Strike a balance between cost and experience when selecting who will be standing by your side throughout your divorce.
If you have any questions about the information that was contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys represent clients across southeast Texas and would be honored to do the same for you and your family. We meet with potential clients six days a week and do not charge you for a meeting with one of our licensed family law attorneys.