Many people going through a divorce wonder about whether or not they can have a family law court order their soon-to-be ex-spouse to pay their attorney's fees before the divorce is over. There are several reasons why a person might need this to happen and the short answer to the question, as is with many family law legal questions, is it depends. Courts will consider various factors in deciding whether it would be fair to order a spouse to pay for the attorney's fees of the other spouse while a case is going on. One important thing to note when requesting attorney fees on a temporary basis is whether you are asking for the attorney's fees based on a suit affecting the parent-child relationship within a divorce i.e. attorney's fees based on the safety and welfare of the children or based on the need for attorney's fees based on another reason. Let's explore the law that gives a family court authority to order one spouse to pay for another spouse's interim attorney fees in a Texas divorce based on facts other than the safety and welfare of children.
Legal Authority for Interim Attorney Fees
Texas Family Code, Section 6.502 states:
a) While a suit for dissolution of 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...
In general, to get a Texas divorce court to order your spouse to pay your attorney fees you must first ask for that specific relief in your pleadings, if you don't ask for it you don't get it, your divorce lawyer should know to do this. After you have pled for the relief you must show the court why you cannot pay your fees. One such reason may be that you have a disability that stops you from working, or perhaps you have been a homemaker for many years and have therefore been out of the workforce and cannot obtain sufficient employment that would allow you to cover your expenses and afford an attorney's services, or perhaps your spouse was in charge of handling all of the homes financial affairs and you have no access to the community estate because you are not on the signature card for any bank accounts. The possibilities here are vast and it is wise to have a qualified Houston divorce attorney review and present a court with your specific case, in a nutshell, your attorney should be prepared to show the court why awarding you with attorney's fees is a fair and just thing to do. You must be prepared to show the court why the attorney's fees are necessary and why it is reasonable for the cost to be what you are saying it is. Your lawyer will also be able to help you here, they should know what they need and why, and they should have some sort of documentation to prove each thing they are saying to the divorce court, such as invoices or billing statements for legal services rendered to you. Another important thing to do is show the court from where your spouse is going to get the money to pay your attorney's fees. For example, you may show a court that your spouse has certain bank accounts with large sums of money in them that you have no access to, or that your spouse has a retirement account with ample funds to cover your attorney's fees. It is one thing to say to a court that a spouse has enough money and you don't, but a mere statement goes much further if you can put forward concrete proof for the court to rely on using items such as bank statements or a retirement account statement, as usual, it is always wise to consult with an experienced family law attorney to help you develop your specific case.
Your Inability to Pay is Important
There are several things that a court will consider in deciding whether or not you have the ability to pay your attorney. One of the first and foremost items here is a lack of income or a very low-income level in comparison to the other spouse. To elaborate on this point you will likely have to testify to what you do for work or your lack of employment and how much you get paid if you get paid. If applicable, you will want to be able to provide a court with pay stubs to substantiate all that you say or provide good solid, and truthful testimony as to why you are unable to work. You will also need to show a court that you don't have access to any funds and no way to obtain access to funds in which to pay your lawyer, this is in addition to your lack of income.
You should be able to show that you haven't paid your lawyer or paid funds are exhausted
Most divorce attorneys require a certain sum of money to be paid upfront as a retainer to start working on your case, or if no money is provided upfront, that they have the right to withdraw from your case if no attorney's fees are ordered to be paid by your spouse after a temporary order hearing. The contract you enter into with your lawyer is important here. You will need to show the court what your agreement is with your lawyer and how much you have paid them to date. You will also need to show solid proof that all of the money you have paid so far has been used before the hearing or that it will be used up after a short time given the amount of work that still needs to be completed on your case. It would be helpful to provide statements from your lawyer showing an itemized list of what has been done on your case and the attorney's rate is. Your lawyer should also be able to help show the court what has been done and based on their experience what still needs to be done to complete your divorce. For example, if you are at the very beginning of your case and you will be requesting a jury trial and children are involved then much more money will be needed to complete that than merely finalizing a case without children that involve a small community estate.
You must show that your spouse has the ability to pay your attorney's fees
If your spouse can't pay your attorney's fees then it is likely that a court will not order them to, Texas family courts strive to be fair to both parties. It is not enough to show that you have a valid reason to force your spouse to pay in your opinion, such as infidelity, it is important to show that not only should they be ordered to pay, but they can do so. Your attorney should be helpful here because they can propound discovery requests on your spouse that will compel them to provide documents that show the size of the community estate and pay stubs and bank account statements among other things that can be tapped into. Your testimony is important, but your chances of obtaining your relief requested are greatly increased if you have proof of what you say and your attorney should strive to obtain the materials needed to do so.
Get a Good Divorce Attorney
You have the right to represent yourself in your divorce, but it certainly doesn't mean that you should. Family courts are very detail-oriented and bound by the complex laws about divorce in Texas. If you want to secure your rights then I urge you to consult with an attorney who is experienced in this area. This office offers free consultations and has handled many divorces and other family law matters so if you are contemplating divorce or are involved in a case then I encourage you to make an appointment for your free case evaluation.
Chad Zubi Houston Family and Criminal Law Attorney.