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As a divorce attorney, I hear this question so often. So many couples are split down the middle in that it is one party asking for a divorce that the other party absolutely either does not want or feels as though they had no part in the breakdown of the marriage. As a result, they feel that the other party should bear all of the costs of the divorce. Attorneys’ fees is a frequent and albeit automatic request in all divorce pleadings from both sides.

If you plead for and have the evidence of a fault divorce (ex. your spouse committed adultery and you can prove it), then the recourse could be that the court orders your spouse to pay attorneys’ fees. There is also a different scenario when the attorneys’ fees are pled for as debt of the community and the court is ordering who should pay those attorneys’ fees. This would be when an attorneys’ office does not receive the compensation for their services and then intervenes in a divorce suit to ensure that their fees are paid by one or both of the parties. However, there was a recent important Texas Supreme Court decision rendered in Tedder v. Aldrich LLP where the Court held that the trial court erred in ordering the husband to pay the wife’s attorneys’ fees because those fees are not necessaries and therefore not a community debt that the husband could be held liable for. This has changed the practice of family law in such a dramatic way.

Therefore, there is no short answer here. Family law cases are determined on a case-by-case basis and with this new Texas Supreme Court decision (which the legislature might overturn in the next session), family law courts are going to be scrutinizing the award of attorneys’ fees and the burden upon which party the payment is placed. However, this is an issue that Guest & Gray, P.C. is familiar with and deals with quite frequently. Contact us to assist you in navigating the best route to take in your litigation.

Many clients ask if we can sue for attorney’s fees as part of their family law case. This is understandable–lawsuits can be very expensive and often times our clients have to hire a lawyer only because the other party violated a court order. This is understandably frustrating to our client. Therefore, most of our clients reason that if they win their lawsuit, and it’s the other party’s fault they had to pay for a lawyer in the first place, they should get the losing party to pay their attorney’s fees. The “loser pays” idea sounds like something that should exist, but it’s not the law in Texas. Winning a lawsuit that is the fault of the other party does not mean you can automatically get an award of attorney’s fees. I tell clients to focus on if the law allows for, and if the judge will grant attorney’s fees.

This was the question posed to the Dallas Court of Appeals in Shilling v. Gough, an enforcement action for a violation of an injunction that was originally ordered in the final decree of divorce. There, the husband argued that the wife had violated an injunction in the divorce decree that prevented her from disclosing certain information regarding the husband’s medical history. The trial court reviewed the injunction and a trial was held in which the court ruled against the Appellant (husband) and awarded attorney’s fees to the Appellee (wife). The husband was unhappy about the attorney’s fees award (not only was it wrong, it was a whopping $96,001.65) and so he appealed. The Dallas Court of Appeals held that the award of attorney’s fees was an abuse of discretion and reversed the trial court’s award.

The reality is it is not sufficient to make a basic argument of “they do not have a basis for this and so therefore I should get attorney’s fees if I win”. In fact, the Dallas Court of Appeals, looking to guidance from the Texas Supreme Court in Tony Gullo Motors 1, L.P. v. Chapa, held that the award of attorney’s fees is not an inherent authority that a trial court possesses. Meaning, the judge cannot do it just because they think it sounds right or if they feel like it. This is because the Texas Supreme Court also held in Travelers Indem. Co. of Conn. v. Mayfield that the authority of a trial court to award attorney’s fees must come from a specific statute. Thus, if a trial court is going to award attorney’s fees, it must have statutory authority to do so.

If you are involved in a divorce case and you no longer want to fight on the issues, you and your spouse can enter into an agreement. The question is on whether you take the mediation or informal route. Thus, you contact your attorney at Guest & Gray, P.C. in Forney, Texas to discuss your options in more detail.

Mediation can be more expensive. This is because mediation consists of you, the other party and your attorneys and a mediator that both parties must pay their fee. The fees range depending upon what mediator you choose or that is ordered by the court. With mediation, you and your attorney sit in one room and the other party and their attorney sit in another room and the mediator goes back and forth as a neutral problem solver and takes offers back and forth trying to promote a settlement. If it is a contested case and the parties cannot informally settle the case, most courts require mediation before a final hearing can be held.

However, if you and the other party and your attorneys feel that you can settle this matter absent the necessity of having a neutral third party present to relay offers and keep the peace then informal settlement may be the best option for you. This can take several forms such as the attorneys relaying offers back and forth without anyone getting together or the attorneys can arrange where the parties and attorneys meet to discuss the matter and finalize.

In some cases, parties enter into an agreement rather than fight over the issues and it is often reflected in a Rule 11 Agreement. In order to be enforceable, the Rule 11 Agreement must either be (1) in writing, signed by all parties and their attorneys, and filed with the Court, OR (2) the agreement must be entered into the open record of the court.

Many parties and their attorneys think that as long as this happens, then the other side cannot back out of the agreement. However, this is an unfortunate misconception. If a judgment has not been entered reflecting the agreement and it has not been made an order of the Court, then the other party can try and back out of the agreement. Thus, you are concerned because you want to keep the agreement that you entered into. How do you do this? Contact your attorney at Guest and Gray, P.C. in Forney, Texas and they can walk you through the steps to enforce your Rule 11 Agreement.

Your attorney will tell you that you must file a motion to enforce and sue the other party for breach of contract. The key to remember is that a judgment cannot be entered reflecting the settlement agreement once the other party has repudiated. That is, in Stein v. Stein the 1st District Houston Court of Appeals held that if a party backs out of the agreement before a judgment is entered, then any judgment rendered after that would be void and invalid. Thus, when you seek a motion for enforcement and you are seeking to enforce the agreement as a contract, you are asking the court to enforce the actual agreement and not enter a judgment reflecting it. Once the court upholds the agreement and enforces it, then you can seek to get the court to sign orders reflecting that agreement. This is also supported by the opinion of the Fort Worth Court of Appeals in CherCo Prop., Inc. v. Law, Snakard & Gambill, P.C. There, the Court held that even though the Plaintiffs had withdrawn their consent to the agreement and this did render any agreed judgment in the future void, it had no effect on the Defendant’s motion to enforce the agreement as a contract.

You are at a hearing of your family law case (whether it be a divorce or custody case). This could be a temporary orders hearing (setting the status quo of the case) or another interim hearing or maybe it is the final hearing. Despite what stage of the case you might be in, most judges encourage the parties and their attorneys to speak before an actual hearing is held. This is because most judges encourage settlement and rightfully so for many reasons.

Only you and the other party know your case the best and this is because it is your life. Thus, if anyone should decide what should happen in the case, it should be the parties. Also, agreements are also in the interest of judicial economy. Meaning, the court’s docket is freed up for those cases that are truly contentious and for those issues that cannot be settled without the guidance of a judge. As well, the parties save money with agreements rather than having knockdown, drag out hearings. Unfortunately, given all of the positive factors some parties are not able to reach agreements.

However, you are among the few and you are able to reach an agreement. On that day, you do not have any specific orders for the judge to sign. Rather, what typically happens is that you and the other party enter into a Rule 11 Agreement. This happens one of two ways–either your attorney or their attorney writes the agreement in full down on a piece of notebook paper and the parties and their attorneys sign. Or, the agreement is written down and both parties testify and the agreement is entered into the open record of the court with the court reporter transcribing. Many people think that the notebook paper or oral recitation of agreement is not very reassuring because it is not in a fancy, typed-up order with legal jargon. However, what most people do not understand is that you must do one or the other in order for the Rule 11 to be enforceable. That is, if you merely had an oral agreement and everyone left the courthouse, if at a later date the other side claims that they did not agree to what you are now claiming the agreement was on the court date, there is nothing you or your attorney can do about it.