Oftentimes, a spouse will find themselves in a position where they do not have access to the same funds being used by the other spouse in litigating a divorce. This is frequently the case when one spouse has forgone their carrier with the understanding that they will stay at home to raise children and therefore do not have access to the same funds as the income earning spouse. In these types of situations, a good attorney will use what we call discovery techniques in order to confirm the existence of funds and then ask the judge to award attorney fees to the non-income earning spouse in order to level the playing field in a divorce proceeding.
After a divorce has been filed, an attorney has the power to compel the other spouse to produce financial records such as bank statements, tax returns, retirement account records, and income statements, which can then be used to create a financial picture of the community estate. Next, an attorney must establish a basis upon which a judge might order interim attorney fees, that is, fees paid from the income producing spouse to the non-income producing spouse in order to afford the expense of the divorce.
On the basis of a divorce, but not considering custody situations, a judge can award attorney fees for the preservation of property and protection of the parties as deemed necessary and equitable. Practically speaking, this mirrors an award of temporary spousal support from community estate funds to pay attorney fees and other litigation expenses. That levels the playing field. A judge will consider whether one spouse has greater access to the community estate, in this instance the spouse who is the sole-income earner, but will not make a party destitute in order to make such funds available; nor can the judge order payment from the other spouse’s separate property in a divorce proceeding.
However, on the basis of a child custody suit, a court may make temporary orders for payment of reasonable attorney’s fees and expenses for the safety and welfare of the child. This is a more difficult burden to meet, as it is not about merely evening the playing field. However, if the judge does find that for the safety and welfare of the child temporary orders for payment of reasonable attorney’s fees and expenses is justified, the judge can order payment from separate property funds.
The general rule of thumb is that you can get to community property funds to pay attorney fees in order to level the playing field in a divorce but must show that it is necessary for the safety and welfare of the child in order to reach separate property for attorney fees.
Finally, on the basis of enforcing temporary or final orders, the Texas Family Code provides that a judge shall order a spouse held to be in violation of court orders to pay the other spouse’s reasonable attorney’s fees and all court costs. Although this is a mandatory order to pay, a judge may waive the mandatory payment of attorneys’ fees and costs if they find the violating party has shown good cause and the judge states the reasons supporting the finding.
Divorcing a spouse with access to a disproportionate amount of funding can be frightening but a good attorney can step in and level the playing field and help clients obtain fair and equitable results.