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Michigan Family Law Blog

Friday, October 18, 2019

Who Pays the Lawyer in a Divorce?

In most cases in America each litigant (person or group involved in suing or being sued in court) pays for his or her attorney fees regardless of who wins the case.  This is called the American rule when it comes to legal fees, in some other countries, the losing side often has to pay for the other side's attorney fees.  One of the problems with the American rule is that it can lead to inequities when one litigant has more money than the other and can use the threat of a law suit or can stonewall the other because of the difference in the ability to pay the fees.  To avoid this imbalance and potential inequality in a divorce case, the Michigan Legislature has created two legal exceptions to the American rule.  Working with your Michigan divorce attorney before you file for divorce can help you understand whether you might be able to have your spouse pay for your legal fees or alternatively, whether you may be liable for your legal bill as well as your spouse's. 

Who Pays the Divorce Lawyer?

In some cases, the attorney fees will be paid as the case proceeds which means that the attorney fees are paid out of joint marital funds.  Typically, at the very least the retainer paid to the attorney (in divorce cases, this is not typically an additional fee, but rather money that is put into a trust account to cover the eventual bills, some firms provide refundable retainers, some firms only allow for non-refundable retainers) from joint funds.  However, in many cases there is an outstanding balance owed to the attorney at the end of the case, sometimes the amount owed can be quite significant.  It is in these cases where the court or the parties must decide who pays those balances.  This is determined by looking at the statutes and court rules as well as case law and applying them to the facts of the particular case.

Court rules provide that a party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.  A party who requests attorney fees and expenses must allege facts sufficient to show that either (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

The seminal case regarding legal costs in divorce in Michigan is Richards v Richards, 310 Mich App 683 (2015).  In that case, the husband was a doctor and he was the primary wage earner during the marriage, while the wife was a nurse and the homemaker for the family.  In that case, the divorce court found that the husband failed to obey court orders and his behavior caused additional attorney fees, but it refused to order the husband to pay for the wife's attorney fees because it believed she could afford to pay her outstanding balance with the spousal support and property the court awarded her in the divorce.  She appealed and the Michigan Court of Appeals reversed the decision.

The appellate court stated that the rule provides two independent bases for awarding attorney fees and expenses.  In general, ‘or’ is a disjunctive term, indicating a choice between two alternatives.  The drafters of statutes are presumed to know the rules of grammar, and statutory language must be read within its grammatical context unless a contrary intent is clearly expressed therefor this rule provides two possible avenues to an award.  It reversed the trial court because it appeared that the trial court conflated the two different bases for awarding attorney’s fees.  The wife alleged facts and provided testimony that included the husband’s admissions sufficient to prove that she incurred attorney’s fees because the other party refused to comply with a previous court order, despite having the ability to comply. The property and spousal support awards do not affect the fact that plaintiff was forced to incur additional attorney fees due solely to defendant’s failure to comply with the trial court’s orders during the divorce proceedings which justifies an award of attorney fees under (b) above.  The wife sought only attorney’s fees for the amount related to these failures and the court of appeals held that the lower court should have ordered the husband to pay those fees.

Contact a Michigan Family Law Attorney for Help

Divorce cases can be expensive in many ways, attorney fees are only one consideration.  An experienced Michigan family law attorney can review your marital estate and discuss how your divorce could potentially impact your assets and your future. Contact Michigan divorce attorney Cameron C. Goulding to discuss your options. 


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