Dallas Divorce Lawyer Blog

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.

You are in the middle of a divorce or custody case and you attended mediation with the other party in which you successfully settled the issues. Upon doing so, you signed a mediated settlement agreement. You think that the case is over and you leave feeling somewhat relieved not having to fight anymore. However, issues could still arise. The question is whether those issues or arguments will be successful. Needless to say, you will need to fight them to ensure that the MSA, your agreement that you worked so hard for, will remain in effect and be enforced by the court.

Mediated Settlement Agreements (MSAs) are classified as binding contracts between the parties as long as it satisfies certain requirements. In fact, Texas Family Code Section 153.0071(d) states that “a mediated settlement agreement is binding on the parties if the agreement” provides in large, bold, underlined lettering that the agreement cannot be revoked; is signed by all parties to agreement; and is signed by all party’s attorneys. You may think that if you have all of this met that you would not have to deal with any further issues. Unfortunately, this is a misunderstanding. If the other party is not happy with the MSA and the trial court’s enforcement of it, then they can appeal that decision. This is when you must look further into the statute, and it seems as though you are still protected. That is, Section153.0071 (e) states that “If the mediated settlement agreement meets the requirements in (d), then a party is entitled to a judgment notwithstanding another rule of law.” Thus, this means that if you satisfy the previous mentioned requirements, then this agreement is enforceable despite another rule of law such as contract law.

An example of where an MSA can be attacked is in a recent opinion from the Dallas 5th District Court of Appeals in In the Interest of C.H.C. and S.M.C., Children where a wife and husband entered into a MSA for the modification suit. However, after the trial court enforced the MSA and ruled on the remaining issues (which can be done according to case law and this Court), the wife was not happy. Thus, she appealed and argued on several issues that the MSA was not enforceable under contract law. In fact, she asserted such contractual defenses as absence of consideration, failure of consideration, mutual mistake, no meeting of the minds, missing terms, and ambiguity. The Court held that it will not make a decision on whether any of these defenses apply to an agreement under 153.0071. Rather, the Court addressed each defense and found the arguments to be wanting and wrong.

According to Texas Family Code Section 7.001, makes a “just and right division” of the community estate when parties divorce the Court. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties’ attorneys fees.

In addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.

When parties divorce the Court, makes a “just and right division” of the community estate according to Texas Family Code Section 7.001. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties’ attorneys fees.

In particular, disparity of earning power has become a major factor in divorces especially those in which one spouse has been the breadwinner of the family. For instance, the Houston 1st District Court of Appeals held in Robbins v. Robbins that the trial court was correct in its decision to award the wife 58% of the community estate and the husband 42% of the community estate. The Court concluded this was because the wife had been out of the working community for quite some time and the husband had a much greater earning capacity than the wife.

When parties divorce the Court, according to Texas Family Code Section 7.001, makes a “just and right division” of the community estate. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties’ attorneys fees.

In addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.

Community property is defined as anything acquired during the marriage. Separate property, however, is anything acquired before marriage and anything acquired during the marriage by gift, devise, or descent. Your separate property is just that–yours. If you are married and you divorce your spouse, your separate property remains yours. In fact, Texas courts are prevented from dividing separate property between spouses.

If you are married with separate property and you love and trust your spouse to the point that you would like for them to also share in the interest of your separate property, to ensure that this is a legal interest, you must convert the separate property into community property. If you fail to do so, then the spouse you love and trust is out of luck when it comes to the separate property that has not been properly converted. This is demonstrated by the Dallas 5th District Court of Appeals in In Re the Estate of Olen F. Cunningham, Deceased. There, the husband had entered into an “Agreement to Establish Right of Survivorship in Community Property” with his wife. The problem was, as the Court held, the agreement did not meet the requirements of Texas Family Code Sections 4.203 and 4.205.

Per Texas Family Code Section 4.203, if you want to convert your separate property into community property, the agreement must “be in writing and be signed by the spouses; identify the property being converted; and specify that the property is being converted to the spouse’s community property; AND it is enforceable without consideration.” You may think (as well as several other unknowing persons) “I have put the home that I brought into the marriage in both of our names so surely that means it is our community property.” However, according to the statute and only caselaw on the subject, you are wrong. That is, the statute goes on further in subsection (b) and states “the mere transfer of a spouse’s separate property to the name of the other spouse or to the name of both spouses is not sufficient to convert the property to community property under this subchapter.”