Attorney Fee Awards in Divorce Cases

I am often asked about attorney fee awards by potential clients. Secondary wage earners (i.e., the other spouse makes more money) or non-wage earners (e.g., stay-at-home parents) are understandably concerned about the ability to pay attorney fees in their divorce cases. Michigan law does permit awards of attorney fees. That is, a court can order the other spouse to pay attorney fees in appropriate circumstances. One such circumstance is the client's inability to pay. In an unpublished decision from the Michigan Court of Appeals this week, trial court's obligation to consider a request for attorney fees in a divorce case was clarified.

In Guenther v Guenther, Court of Appeals Docket No. 283559, the father appealed a Wayne County trial court's award of both custody and attorney fees to the mother. Affirming the award of custody, the Court of Appeals nevertheless sent the case back to the trial court on the issue of attorney fees. The appellate court made it clear that an award of attorney fees is not appropriate unless the party requesting the fees can demonstrate an inability to pay his/her own legal fees. Furthermore, it is not enough to show that one party makes more money than the other; there actually has to be an inability to pay. The trial court was ordered to conduct an evidentiary hearing at which the wife would have to present evidence that she was unable to afford the cost of her own attorney fees.

The Guenther decision reaffirms the advice I always give my clients: Attorney fees can be awarded, but whether and how much is very fact-specific, and must be decided on a case-by-case basis.