By default, parties to litigation in the United States are generally responsible for their own attorneys’ fees and expenses under the “American Rule”, unless specific authority is granted by statute, court rule or agreement to assess them against the other party. This is distinct from the “English Rule” used in other countries where the losing pays the winning party’s attorneys’ fees and costs. In most divorce cases in Michigan, parties end up paying for their own attorneys. However, there are many potential instances where the court can order a spouse to pay the other spouse’s attorneys’ fees and expenses. This blog article will explore what situations that the judge can order a spouse to pay all or part of the other side’s costs for legal counsel or furthering the divorce action.
LEGAL AUTHORITY FOR AWARD OF ATTORNEY FEES AND COSTS
The power of the court to compel payment of attorneys’ fees and costs by the other side is enshrined in statute. MCL 552.13(1) provides the following:
- “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.”
Michigan’s court rules also further define the parameters when the judge can order attorney fees and costs under MCR 3.206(D):
- (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
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- (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.
It is within the discretion of the trial court to award attorney fees in domestic relations cases. Reed v Reed, 265 Mich App 131; 164, 693 NW2d 825 (2005). “A party to a divorce action may be ordered to pay the other party’s reasonable attorney fees if the record supports a finding that such financial assistance is necessary to enable the other party to defend or prosecute the action.” Stackhouse v Stackhouse, 193 Mich App 437, 445’ 484 NW2d 723 (1992). An award of legal fees is also authorized where the party requesting the fees has been forced to incur them as a result of the other party’s unreasonable conduct. Hanaway v Hanaway, 208 Mich App 278, 298, 527 NW2d 792 (1995). The party requesting the attorney fees has the burden of showing facts sufficient to justify the award. Borowsky v Borowsky, 273 Mich App 666, 673; 733 NW2d 71 (2007). In Richards v Richards, 310 Mich App 683; 874 NW2d 704 (2015), the Michigan Court of Appeals clarified that MCR 3.206(D) does not require showing ability to pay AND violation of court order, but rather one or the other independently:
- “Here, the trial court specifically found that defendant failed to obey its orders and found that these violations “certainly caused confusion and extra time by all parties involved.” Nevertheless, because of the property division and the spousal support award, the trial court refused to award attorney fees to plaintiff. In so doing, it appears that the trial court conflated the two different bases for awarding attorney fees. Plaintiff alleged facts and provided testimony that included defendant’s admissions sufficient to prove that she incurred attorney fees “because the other party refused to comply with a previous court order, despite having the ability to comply” under MCR 3.206(D)(2)(b). The property and spousal support awards do not affect the fact that plaintiff was forced to incur additional attorney fees due solely to defendant’s failure to comply with the trial court’s orders during the divorce proceedings. Plaintiff sought only attorney fees for the amount related to these failures.” Richards, 310 Mich App at 701-702.
“UNREASONABLE CONDUCT” MUST BE EXPLICITLY DETERMINED BY THE TRIAL COURT BEFORE ATTORNEY FEES AND COSTS CAN BE AWARDED
In Reed v Reed, 265 Mich App 131; 693 NW2d 825 (2005), the Michigan Court of Appeals determined that trial courts must make explicit findings about what attorney fees and costs were incurred as a result of misconduct and also determine the reasonableness of the fees charged.
“The trial court abused its discretion by awarding attorney fees on the basis of defendant’s unreasonable conduct without finding that defendant’s misconduct caused plaintiff to incur the fees awarded. Without a specific finding of misconduct, or finding a violation of a court order, the trial court broadly asserted that defendant “caused this litigation to continue for two and one-half years.” This statement is too general to permit meaningful review. Further, the fact that litigation has been lengthy is not by itself reason to conclude misconduct has occurred. Although defendant’s failure to comply with a discovery order constituted misconduct, plaintiff did not establish what fees she incurred as a result. Finally, presenting at trial evidence made relevant by the court’s rulings, which the other party determines should be countered with rebuttal evidence, is not misconduct.”
“Moreover, the trial court further erred by not conducting a hearing or finding facts regarding the reasonableness of the fees incurred. The party requesting attorney fees bears the burden of proving they were incurred and that they are reasonable. When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. The trial court may not award attorney fees, as apparently occurred here, solely on the basis of what it perceives to be fair or on equitable principles.”
“In the instant case, the only evidence pertaining to attorney fees was plaintiff’s testimony that before trial she had received a statement for $100,000 from her current attorney and that she had paid a prior law firm a $6,000 retainer. In addition, plaintiff’s counsel asserted in opening statement that plaintiff’s attorney fees were then in excess of $140,000, and counsel stated in closing argument that plaintiff’s legal fees had increased by $80,000 for twelve days of trial. But plaintiff submitted no evidence regarding what fees were actually incurred because of defendant’s misconduct, and the trial court made no finding in that regard or concerning the reasonableness of the fees incurred because of misconduct. Accordingly, the trial court abused its discretion.” Reed, 265 Mich App at 165-166.
The judge will be required to hold a separate hearing to determine if a court order was violated or unreasonable misconduct occurred, if the expenses incurred are related to the violation or misconduct alleged, and that the attorney fees requested are reasonable.
ATTORNEYS FEES AND COSTS CAN BE AWARDED FOR FRIVOLOUS LEGAL POSITIONS
In addition to sanctioning unreasonable misconduct or violating court orders under MCR 3.206(D), Michigan law provides that a judge can award attorneys’ fees and costs against a spouse that advances a frivolous legal position causing the other spouse to incur unnecessary costs:
- “Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.” MCL 600.2591(1).
- “The amount of costs and fees awarded… shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.” MCL 600.2591(2).
- “Frivolous” means that at least 1 of the following conditions is met:
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- “The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.” MCL 600.2591(3)(a)(i).
- “The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.” MCL 600.2591(3)(a)(ii).
- “The party’s legal position was devoid of arguable legal merit.” MCL 600.2591(3)(a)(iii).
In divorce cases, frivolous conduct may apply to unreasonable legal positions regarding marital property, filing motions devoid of any legal merit, or advancing legal proceedings in a manner only designed to harass the other spouse and nothing else.
DIVORCES CAN BE EXPENSIVE, BUT A GOOD ATTORNEY IN YOUR CORNER IS INVALUABLE
Courts have wide discretion in determining who should pay attorneys’ fees in a divorce action. You only get one opportunity to handle your divorce correctly, so investing in legal counsel is critical. If the circumstances allow, a skilled family lawyer can convince the judge that an award of attorneys’ fees and costs are appropriate in your situation.
If you have any further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
