Wednesday, January 16, 2008

Will I Have to Pay My Spouse's Attorney's Fees?

This is part of my Frequently Asked Questions series. Many times, I hear this question early in the litigation process. Often one side will threaten to make the more financially secure person pay for the other person's attorney. It's often used to irritate a spouse who controls the funds and who often is used to controling most things in the relationship. Sometimes it's just a matter of economics -- one side has all the money, but both sides need lawyers.

The answer to the question in Texas is usually, "It depends."

Ultimately, all the money comes from the same pot, the community, unless one party has some separate funds (inheritance, gift or possessed prior to marriage, for example). If the only source of money to pay attorney's fees is current income, and there is a disparity of income and/or debts being paid, most courts around here will order some equalizing of attorney's fees. If both parties have adequate income or credit to be able to pay their own attorney, the court may not require the other party to pay for them.

The party receiving payment often does not receive the full amount requested, but Courts usually try to provide a minimum, but adequate, amount. The amount received depends on a number of factors, including the complexity of the case, the resources available, other obligations of the parties and the expected cost of each attorney, among other things.

Attorney's fees are often part of a final judgment, although they may just be considered as part of the division of the property. The Court will usually take into consideration a number of factors, including effort and cooperation by each party, how well or badly the parties behaved, income disparity and available resources, among others.

Since the funds used to pay attorney's fees are usually community funds, the legal reality is that the community is paying the fees, although it may feel different to the paying spouse. Best advice for the spouse controling the money: Be prepared to pay. Best advice to the spouse needing money: Don't count too heavily on the payment because the Judge may not award as much as you need, or even anything at all.

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