I get questions pretty frequently from other lawyers that I mentor about how to request and get interim attorneys fees while a divorce is pending when there’s no kids.
(The standard for awarding interim attorneys fees in a divorce with kids is different and notthe subject of this post.)
Obviously, the first, best way for a lawyer to get paid for representing a client in this circumstance is to get paid upfront, by retainer. Sometimes a client does not have access to the accounts from which to pay the lawyer, so the lawyer must see fees to be paid from the community estate ordered by the Court. Any request for interim fees can only be considered under Texas Family Code section 6.502(4).
An court-ordered award of interim attorney’s fees must:
Be based on the needs of the applicant weighed against the ability of the community estate or the other party to pay. Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App. – Corpus Christi 1999, pet. denied).
May not be enforced by contempt – but only as a debt. In re Bielefeld, 143 S.W.3d 924, 930 (Tex. App. – Fort Worth 2004, orig. proceeding).
May not make the opposing party destitute in order to pay fees. Herschberg at 279.
Cannot be used to make an interim division of the property or to equalize one party to the other pending final division. Herschberg at 278.
Cannot be used “to level the playing field” — that is an abuse of discretion. Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App. – Houston [1st] 1994, orig. proceeding).
Past due attorney’s fees incurred during the litigation are in the nature of a debt and cannot be addressed via interim orders. Saxton at 736.
Must be based on evidence showing the reasonableness and necessity of the fees to be incurred. In re Sartain, 2008 WL 920664 (Tex. App. – Houston [1st Dist] 2008, no pet).
Of course, if the parties agree to pay attorneys fees in some manner, that agreement is enforceable. That is not what I am talking about in this post. Here, I’m addressing when and how a court may imposed an attorney fee award by contested order.
Many lawyers and judges I see are surprised that “equalization” is not a proper standard for awarding attorneys fees. This point cannot be emphasized too much! Equalization is never the right standard! If you think about it, this makes sense. One party may have more knowledge of the marital estate or better access to documents. So, that party’s fees may be naturally less, where the other side has to spend more time to gather information that is not at that spouse’s disposal.
The remedy for an improper interim attorneys fee award in mandamus.
Texas Governor Greg Abbott signed into law a bill eliminating a loophole allowing child marriage.
The new law prohibits people under the age of 18 years from getting married unless they are emancipated minors.
Minors are allowed to emancipate from their parents at the age of 16, so the youngest age a person may marry in Texas under any circumstance is now 16.
The prior law permitted one parent to overrule another parent to allow a 16 year old to marry, and a parent could consent to the marriage of a child of any age with the approval of a judge without regard to whether the child was being subject of abuse or coercion.
According to a Pew Research Center report, Texas has the second-highest rate of child marriage, with 7 out of every 1000 minors aged 15-17 were married in 2014. The national average is 5/1000. Between 2000 and 2014 almost 40,000 minors got married in Texas.