Tedder v. Gardner Aldrich, LLP: Texas Supreme Court Holds Attorney Fees In Divorce Are Not Necessaries Under Spousal Support Statute

This ground breaking case out of the Texas Supreme Court could forever change the way attorney fees are requested, awarded, and recovered by law firms in Texas divorce proceedings by holding that legal fees incurred by a spouse in a divorce proceeding are not “necessaries” (food, clothing, essential medical care, habitation, etc.). This means that legal fees cannot be ordered as spousal support and the non-incurring spouse cannot be required to pay the other party’s attorney’s fees from their separate property.

In the underlying Fort Worth divorce, Husband sued Wife for divorce and custody of their children. Wife hired Law Firm to represent her in the proceedings. After the jury verdict, Law Firm sued both Wife and Husband for its fees. After a hearing, Husband and Wife agreed that the final decree would award Law Firm attorney fees against Wife only and would not award Wife attorney fees against Husband. The trial court rendered judgment in accordance with their agreement. Wife subsequently sought the protection of bankruptcy and was discharged. The trial court determined that Law Firm was not entitled to payment of fees from Husband. Law Firm appealed.

The court of appeals rendered judgment for Law Firm against Husband and Wife jointly and severally, holding that Husband was liable for Wife’s Legal fees because the obligation was a "community debt," and the legal fees were "necessaries" for which Husband was liable to the firm.

The Supreme Court reversed, holding Wife’s legal fees were not a “community debt” for necessaries under the spousal support statue, thus Husband was not liable to pay Law Firm for legal services rendered to Wife. The Texas Supreme Court dispelled the long-standing notion of legal services in a divorce proceeding as necessaries for which the other spouse is statutorily liable to pay the attorney and clarified the often confused concept of “community debt”. Also, for attorneys trying to recover your fees from a nonpaying client, this case indicates that intervention in the divorce action is probably not the proper way to do it.

This is an important case for both family lawyers and their divorcing clients. It will receive a lot of attention in months to come and will be cited throughout court houses across this state.

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