Why mediation may help during a divorce

Who Pays Attorney Fees in a Texas Divorce?

Jad J. Stepp

Going through a divorce can swiftly become a costly endeavor. If a spouse was blind-sighted to the oncoming split, the divorce fees could be quite a shock. According to the U.S. Census Bureau, divorce rates are high in Texas at 8.4 per 1,000 people compared to the national average of 7.7. Often, deciding who pays the attorney fees to bring about divorce in Texas is a main point of contention.

Texas is a community property state, meaning that all assets and debts accrued throughout a marriage are subject to division. With that in mind, Texas does not acknowledge legal separation, which means that the marriage remains intact until the day that the Final Decree of Divorce is signed. As a result, all divorce and attorney fees acquired are considered community debt – even if spouses are separated.

How Do Texas Courts Assess Community Assets & Debts?

Texas courts will not require the spouse who filed for divorce to pay a more substantial portion of attorney fees as a punitive measure. Filing for divorce is every Texas resident’s right. Ordering the filing spouse to pay for the other’s attorney fees as punishment for dissolving the marriage is not a realistic goal in Texas. However, judges consider the full scope of financial circumstances between spouses when assessing community assets and debts, including the financial needs and capabilities of both spouses before granting attorney fees.

If there’s a disparity in income between spouses, meaning one spouse makes significantly more income than the other, Texas courts are more apt to order the financially-sound spouse to pay some or all of the economically dependent spouse’s fees.

Determining who’s responsible for attorney’s fees can be finalized in an agreement during mediation or by the court’s order after a hearing.

What Happens if a Spouse is Unable to Pay for Legal Representation?

If one spouse lacks the resources to pay for legal representation and the other spouse has the financial means and ability, he or she can request temporary fees by use of a Motion for Interim Attorney Fees. The judge then evaluates the existing attorney fees that have accumulated, along with the resources of both spouses to pay.

Financial resources that a Texas judge might examine include each party’s potential:

  • Cash on hand,
  • Capability to borrow from their family,
  • Credit card spending authority, &/or
  • Retirement savings that can be borrowed against.

After careful consideration, a judge decides whether one spouse must pay for the other’s legal costs. It’s not uncommon for a judge to order the financially solvent spouse to either make a flat payment or a dollar for dollar contribution for their spouse’s legal fees – meaning that each dollar he or she pays for their own counsel must be paid to their spouse’s counsel as well.

Clients must be transparent in disclosing their financial statements to their divorce attorneys to prepare for such a hearing. That’s essential to support or defend against any claim for attorney fees to be awarded.

Consider Attorney Fees During the Final Settlement

Attorney fees are considered during the final property settlement discussions. Since all attorney fees accrued until the day of divorce are considered community debt, both spouses and attorneys should present a clear and detailed report of all costs acquired up to the date of mediation or litigation. Both spouses and their attorneys should include projected fees that are necessary to finalize the divorce.

Often, attorney fees account for a substantial portion of the community debt by the time a divorce is finalized. When dividing what’s left of the community estate’s debts and assets, both parties should be aware of the final attorney fees that will be deducted from the assets. That will undoubtedly be taken into account when the court decides how to divide the estate in a just and fair split.

Bad Faith Can Affect Distribution of Attorney Fees

Outside of financial need, a court can also order one spouse to pay the attorney’s fees should they act in bad faith. Meaning, if a party resists complying with the discovery process or resists scheduling a court-required mediation, the judge may view this as an intentional act that can justify attorney fees being ordered. A judge may order it on his or her own motion or at a hearing.

Contact Houston’s Dedicated Team of Divorce Lawyers 

The divorce process can be a drawn-out and increasingly expensive one for many contested divorces in Houston. It’s essential to have a legal team that you can trust to help you through the divorce process to best achieve your goals. If you’re going through a divorce or believe that one is unavoidable in your future, the family law attorneys at Stepp & Sullivan are here to help.

At Stepp & Sullivan, PC, our Texas family law attorneys have more than 70 years of combined legal experience helping families navigate the challenges of a divorce. We can discuss your case and your concerns regarding attorney fees to help strategize a working course of action. Our firm offers client-focused and compassionate legal representation in Houston. Schedule a free consultation by completing an online contact form or call our office today at (713) 336-7200..

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