When it comes to paying attorney fees in divorce, the fees are usually paid from the marital estate, however, there are circumstances when a court can order your spouse to pay some or all of your attorney fees. There are three different laws regulating who pays attorney fees in divorce.
The three laws regulating who pays attorney fees in divorce.
The first law is a a court rule which can be found at Michigan Court Rule 3.206(D) and authorizes a party to ask the court order the other party to pay all or part of the attorney fees and expenses related to a divorce at any time.
(D) Attorney Fees and Expenses.
(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 requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, including the expense of engaging in discovery appropriate for the matter, and that the other party is able to pay, or
(b) 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, or engaged in discovery practices in violation of these rules.MCR 3.206(D)
The second law is Michigan Compiled Laws Section 552.13(1), which specifically authorizes a court to require either party to “pay any sums necessary to enable the adverse party to carry on or defend the action” for divorce.
(1) In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.
The third law is Common law. Common laws are laws originating in England which remain law here. Under Common law, “. . . the attorney fees must have been incurred because of misconduct.” Reed vs. Reed.
In an opinion dated July 20, 2023, the Michigan Court of Appeals examined the question of who pays attorney fees in divorce in the case of Zuidersma v. Zuidersma a case originating in the Grand Traverse Circuit Court. In this case, the husband appealed the trial courts order awarding his wife $10,000 in attorney fees after the court determined that the husband made unsupported legal claims and other misconduct.
In upholding the trial court’s award of attorney fees, the Michigan Court of Appeals relied on the three laws governing who pays attorney fees in divorce. 1. Michigan Court Rule 3.206(D); 2. Michigan Compiled Laws Section 552.13; and (3) Old English Common law (See: Reed vs. Reed).
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