Can I Make My Spouse Pay My Attorney Fees In A Divorce?
Typically, when parties engage in litigation, each party pays for his, her or its attorney fees regardless of winning or losing. This is also true realistically regardless of whether the party that starts the litigation had any good grounds or legal reasons for filing the case. This is known as the "American Rule".
In domestic litigation cases, there are two instances where a party may ask that the other side pay for his or her attorney fees and the court may order the other side to pay. The courts may order the other spouse to pay where (1) a person is not able to pay for his or her attorney fees and the other person has the ability to pay for them or (2) where a party's misconduct has caused the other party to incur unnecessary or unreasonable legal fees or costs.
A good example of the second instance, is a case that originated in Oakland County, Michigan, Schwartz v Schwartz, Mich App, Docket No. 338291, August 1, 2018 (Unpublished). It appears the husband filed for divorce in 2013 and the second appeal was finally finished in August 2018, a long and arduous divorce. In that case, the issue of attorney fees went before the court of appeals twice. In that case, the divorce trial court ordered the ex-husband to pay his ex-wife sixty-eight thousand, four-hundred, fifty-two ($68.452) dollars, which is significant amount of money for attorney fees. This is particularly true as this amount was only a portion of the overall fee that the attorney charged the wife in this case.
The second time around on appeal, the issue was whether the divorce trial court demonstrated the necessary link between the husband's misconduct and the amount of the attorney fees the court awarded. The court of appeals found that the trial court sufficiently established the link based upon the wife's attorney's testimony that he marked off on his billing the time he believed he billed to the file for time exclusively related to handling issues caused by actions that the court found to be unreasonable. The husband was apparently not able to sufficiently refute this testimony and the court of appeals upheld the award of the attorney fees.
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