My spouse recently filed for divorce. Although there exist substantial marital assets, I do not have access to our bank accounts and, thus, do not have the funds to hire a lawyer to represent me. Are there any provisions in Texas law which allow courts to make attorney fee orders in divorce cases?
The issue of whether a Texas divorce court can order one spouse to pay all or part of the other spouse’s divorce-related attorney fees has somewhat of a checkered past. A relatively new statute, which became effective September 1, 2013, seeks to make the law in this area less unclear. This new law, however, appears to have created many more legal questions that it has answered.
In 1950, the Texas Supreme Court acknowledged that spouses owe each other a reciprocal duty of support. In other words, to the extent the financial ability to do so exists, combined with a corresponding need, a married person must provide his or her spouse with the “necessaries” of life. The Court held that “necessaries” consist of things like food, clothing and shelter, but not attorney fees. Carle v. Carle, 234 S.W.2nd 1002, 1005 (Tex. 1950).
In a case that supposedly “clarified” Carle, some two and a half decades after Carle was issued, an intermediate Texas appellate court explicitly stated that there exists no statutory authority for an award of attorney fees in Texas divorce cases. In re: Marriage of Jackson, 506 S.W.2d 261, 267 (Civ. App.–Amarillo 1974).
Texas family courts however – perhaps not unlike some courts in other jurisdictions – did not let the absence of statutory authority get in their way of doing what they wanted to do. Awards of attorney fees in Texas divorce cases have commonly been made from the parties’ so-called “community estate,” that is, by an unequal division of their marital property, all with the judicial approval of the state supreme court in Carle. (If marital property is truly of the “community property” variant, it must, by definition, be divided equally. To do otherwise is to repudiate the very concept of community property itself. To the extent that Texas refers to its system of marital property as being community property, its system of marital property is mislabeled. Call it what you will, but it simply is not community property. But that is a separate discussion.)
Following In re: Marriage of Jackson, in 1974, all was relatively quiet on the issue of attorney fee awards in Texas divorce cases, this was, until Tedder v. Gardner Aldrich, LLP, came along in 2012.
Tedder v. Gardner Aldrich, LLP arose in an unusual – that is, improper – procedural context. Gardner Aldrich was the law firm that represented Mrs. Tedder in her divorce. After a jury trial, Gardner Aldrich withdrew as Mrs. Tedder’s counsel. Notwithstanding that its fee contract was with Mrs. Tedder only, Gardner Aldrich then intervened in the Tedder divorce case and asked the divorce court to order Mr. Tedder to pay Mrs. Tedder’s attorney fees.
The Tedder divorce case ultimately settled, with a stipulated judgment being entered that required Mrs. Tedder, but not Mr. Tedder, to pay Garder Aldrich’s fees. Some time thereafter, Mrs. Tedder filed for bankruptcy and received a discharge of her debts, including $190,000 in attorney fees she owed to Gardner Aldrich. Gardner Adrich, obviously unhappy, then appealed the Tedder stipulated divorce judgment.
Both the Texas intermediate appellate court (which held Mr. Tedder was liable to Gardner Aldrich for Mrs. Tedder’s legal fees) and the Texas Supreme Court missed a golden opportunity to resolve the appeal by simply ruling that the trial court erred when it allowed a mere creditor – the Gardner Aldrich law firm – to intervene in a divorce case. The appellate courts should have required that Gardner Aldrich be dismissed from the case based on a lack of standing. After all, allowing a law firm to intervene in a divorce case to collect a bebt owed by either the husband or wife, or both, is no different than allowing any other creditor of a divorcing party or couple to intervene. Creditors can file regular civil lawsuits to vindicate their contract claims against divorcing parties or couples; however, they simply lack standing to intervene in divorce cases. (Imagine a credit card company, in its effort to get paid, trying to intervene in a divorce case!)
Nevertheless, the Texas Supreme Court upheld the stipulated trial court judgment that resulted in Mrs. Tedder being solely responsible for her legal fees. Read the Court’s full opinion here:
The Texas Supreme Court’s opinion in Tedder apparently hit a nerve in the Texas Legislature, which responded with H.B. No. 1366. This piece of legislation, which became effective September 1, 2013, added subsection (c) to Family Code § 6.708, which states:
“In a suit for dissolution of a marriage, the court may award reasonable attorney’s fees and expenses. The court may order the fees and expenses and any postjudgment interest to be paid directly to the attorney, who may enforce the order in the attorney’s own name by any means available for the enforcement of a judgment for debt.”
These mere two sentences of legislation all but promise to encourage more litigation. First, attorneys are now more likely to accept divorce cases when it appears that the client’s spouse can be forced by court order to pay the client’s legal fees, even though the client does not have the ability to pay.
Second, this two sentence statute is completely devoid of any guidance or standards that trial courts should use when ruling on fee requests. Ambiguous statutes have generated many, many dollars in legal fees; there is no reason for this statute to be any different.
One underutilized tool which can be used when attempting to take some of the uncertainty out of possible future family court proceedings is to use a properly negotiated, drafted, and executed premarital or marital property agreement address the issue the commonly arise in divorce litigation, including the issue of attorney fees.
Every case is different and results in legal matters can never be guaranteed; however, that does not mean that the law itself doesn’t afford clients some opportunity and ability to control their legal destinies (and expenses).
For more information on this topic, click here to: Contact Lapin Law Offices
Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Post Office Box 802401
Dallas, Texas 75380
Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.