Attorney's Fees - Who Gets Them and When: Part 2

As I said in my post last week, virtually every party in a divorce asks for attorney’s fees at one point or another. The truth is that in Texas (a community property state) both parties to a divorce are likely getting their fees from the community estate – or on community credit via loans or credit cards – unless you are in a situation where one spouse has complete control of the vast majority of marital assets.

Attorney’s fees owed and/or incurred by both sides can impact the court’s division of the community estate in a divorce. Texas case law recognizes this reality, providing that attorney fees are one of the factors that the court may consider in making a “just and right” division of the community estate under Section 7.001 of the Texas Family Code. Keep in mind that the court has discretion to consider attorney’s fees and what is in fact a “just and right” division of property is subjective, based on a number of factors, and the consideration afforded attorney’s fees by the court might not necessarily be dollar-for-dollar.

Also, at the temporary orders stage of a case the Texas Family Code specifically provides that the court can award attorney’s fees while the case is pending “for preservation of property” and/or for protection of the parties. Requests for “interim attorney’s fees” are common at temporary orders hearings – especially in situations where the parties do not have equal access to financial resources from which to pay their attorneys.

Once a divorce is granted and if an appeal is filed, the trial court has the authority to award attorney’s fees to one side or another under the authority the Texas Family Code provides for temporary orders pending appeal. This situation is far less common than attorney’s fees awarded as temporary orders while a case is pending.

In addition attorney’s fees in a divorce, the court also has authority under Texas law to award attorney’s fees to one side or the other in suits affecting the parent-child relationship (SAPCRs). Stay tuned to part 3 of my blog next week for this discussion.

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