Attorney Fees

by Connie Thacker 02/12/2019

Are my attorney fees recoverable in my divorce?  The Michigan Court of Appeals recently issued an unpublished decision answering this question in the case of Cox v Cox; Court of Appeals number 338642 and 339950.

Attorney fees are not ordinally recoverable unless a statute, court rule, or common law exception provides to the contrary.  See Dessart v Burak, 470 Mich 37, 42; 678 NW2d 616 (2004).  In divorce matters, attorney fees are authorized by court rule and by statute.  The party requesting the attorney fees has the burden of showing facts sufficient to justify the award.  Michigan Court Rule 3.206 (C) provides as follows:

  1. A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post judgment proceeding.
  2. A party who requested attorney fees and expenses must allege facts sufficient to show that:
    1. The party is unable to bear the expense of the action, and that the other party is able to pay, or
    2. The attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

Typically, this rule has been interpreted to require an award of attorney fees to the extent necessary to enable a party to prosecute or defend a suit. A party sufficiently demonstrates an inability to pay attorney fees when that party’s yearly income is less than the amount owed in attorney fees. Additionally, with respect to a party’s ability to prosecute or defend a divorce action, a party may not be required to invade her assets to satisfy attorney fees when she is relying on the same assets for her support.  Maake v Maake, 200 Mich Appp 184, 189; 503 NW2d 664 (1993).

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