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Can I Get My Spouse to Pay my Divorce Attorney Fees?

Can I Get My Spouse to Pay my Divorce Attorney Fees?
Hendershot, Cannon & Hisey, P.C.

Divorce can be expensive. All too often stay-at-home moms, or spouses who have a partner that controls the finances, feel trapped. Have you been asking yourself, "Is it possible to get an award for attorney's fees from my spouse?" The answer to this question isn’t as simple as a yes or no – but there is good news.

Texas is a community property state, which means real estate, income, retirement, business interests and other financial accounts or assets acquired during the course of the marriage are presumed by the courts to be jointly held assets. So, if you've remained in an unhappy marriage, telling yourself, "Getting my attorney's fees paid is impossible," take heart. A skilled Houston divorce attorney may be all you need.

Division of Community Property in Texas:

The Texas Family Code operates under what is called a "just and right" principle when it comes to a judge making decisions about how to divide the community property. The State of Texas considers real property, personal property, financial accounts, business interests and businesses acquired in marriage to be community property - regardless if only one spouse's name is on the accounts. For property to be classified as separate property, a spouse must prove by clear and convincing evidence that their separate assets are in fact their separate property, which is property of a spouse owned before marriage, as well as property given to only one spouse during the marriage and inheritances.

In the event a spouse is locked out of access to a financial account they need to use for attorney fees, a judge may issue an order for the other spouse to pay their retainer fee.

Interim Attorney Fees and Temporary Orders: At a Temporary Orders hearing, requests are made for certain terms and conditions that will remain in place during the pendency of the divorce proceedings. In contested divorces, temporary orders serve as the first stepping stone to request the court to order your ex to pay your attorney fees.

Common factors Texas courts will consider to grant an order for interim attorney’s fees include:

  • One party has little or no access to community funds
  • Large income gap between spouses
  • Disparity of spouses earning capacities
  • A spouse who has no income or a spouse that is a stay-at-home mom/dad
  • The fault in the breakup of the marriage
  • A spouse's bad behavior that may indicate fraud or stall proceedings in order to spike attorney's fees

Interim Attorney Fees and Community Property:

One method the courts will utilize for the payment of interim attorney fees is through the selling of community assets. If there are not enough cash funds available to pay legal fees, a motion can be filed with the court to order the sale of extraneous property to make the necessary funding available.

Getting Started - Divorce Roadmap:

Although Temporary Orders may be the first stepping stone towards divorce and interim attorney fees, it is not the actual first step. Here's a roadmap of divorce so you know what to expect before a ruling on whether or not your soon to be ex-spouse will be ordered to pay for your attorney's fees:

  1. Original Petition for Divorce is filed.
  2. Citation and Response is awaited and received. This is the answer from the other spouse, responding to a partner's complaints contained in the filed petition as to why they are seeking a divorce.
  3. Mediation/ Temporary Orders hearing.
  4. Discovery process: The exchange of information, following certain procedures, occurs. This process "discovers" the necessary information related to complaints, finances, property, etc.
  5. Negotiation and mediation is an opportunity to avoid a trial and settle the divorce through mediation.
  6. Trial: If settlement through mediation is unsuccessful, the court will hear the case and make a ruling.
  7. Divorce Decree.
  8. Closing documents.

Finding Legal Representation in Texas. Houston Divorce Attorneys:

If you are a cash-strapped spouse desiring a divorce from a partner who seems to hold all the cards, you need an attorney with divorce expertise who will aggressively represent your best interests. Please contact us for a consultation with skilled Houston divorce attorneys that have more than a century of combined experience.