Attorney’s Fees in Family Law

Attorney’s fees are a remedy available in family law cases in Texas.  However, the courts don’t always award attorney’s fees.  So how do attorney’s fees work?  What do attorney’s fees work between you and your lawyer?

Distinction: Asking for Attorney’s Fees & Getting Attorney’s Fees

The rules of civil procedure require that parties in a suit plead for what they want from the case.  This means no party can ask the judge to do anything that wasn’t first asked for in the pleadings.  Consequently, almost all family law cases feature a request for attorney’s fees in the first pleadings by the parties.

We routinely have people come to us having just been served papers for a family law case.  One of their biggest concerns is “He wants me to pay for his attorney too?”  Indeed, included near the end of the papers is a request for Attorney’s Fees. Right away we reassure the person, that the courts rarely award attorney’s fees.  Nevertheless, when we file our pleadings in the case, we also ask for attorney’s fees.

Since we must plead for everything we want in a case, why not ask for attorney’s fees too.  While most cases end with both parties paying their own lawyers’ fees, it would be silly not to ask for reimbursement.  If it turns out that attorney’s fees don’t come up in court, we are no worse off.  However, if the situation at trial would justify attorney’s fees from the other party, but we did not plead for them, that would be disastrous.

Attorney’s Fees: When Do You Get Them?

Generally speaking, there are two types of attorney’s fees: permissive and mandatory.  The types are governed by the Rules of Civil Procedure and the Family Code.

The Rules of Civil Procedure and the Family Code both allow for circumstances when attorney’s fees shall issue.  For example, the Rules provide attorney’s fees if the court finds the pleadings of a party are frivolous.  In Family Law, when a person is found in contempt of court during an enforcement hearing, attorney’s fees shall be assessed against the contemptor.  Mandatory attorney’s fees serve as a punishment to help prevent bad behavior that uses the court’s time.

Permissive attorney’s fees are ordered by the courts when the law allows them as an option.  Here, they are still used as a punishment, but the court has discretion to order them.  If the court thinks attorney’s fees are fair, it can order them.  If the parties act in good faith, and “fight fair” in their case, the court lets each party pay for his or her own lawyer.  Permissive fees only come in when the court feels like one party abused the system against the other.  However, just because one party has an advantage does not mean attorney’s fees will come into play.  In our experience, the courts don’t mind an advantage, so long as the parties fight an honest fight.

Attorney’s Fees & Your Lawyer

People often make the mistake of presuming that if the other side is forced to pay attorney’s fees, the case won’t cost them anything.  This is almost never the case.  At most the attorney’s fees are a reimbursement.  At worst, they are a judgment that never gets paid.

Lawyers sell legal services to clients.  The legal work costs the lawyer time and money.  This is why the lawyer bills the client for the legal work he or she needs done in the case.  If attorney’s fees are collected at the end of the case, the lawyer will take the payment.  Then the lawyer refunds the client the same amount of money.  In this way the client is reimbursed for the fees paid to the lawyer in the case.

Four Considerations

Attorney’s Fees for Specific Purposes

It is possible to be awarded attorneys fees for a specific hearing, but not for the whole case over all.  For example, if the court determines a particular hearing was brought frivolously, the court may award fees for that hearing without ordering fees at final trial later in the case.

Attorney’s Fees Requested vs. Fees Ordered

The lawyer asks for a certain amount of fees to reimburse for the legal work done for the client. The court may award the full amount requested, some smaller amount, or none.  Generally, winning a hearing does not entitle a client to attorney’s fees.  If the court finds, under the facts, that fees are appropriate then it will decide how much fees to order.  Hopefully the amount will be the full amount your attorney asked for.  But don’t be surprised if the court orders a smaller amount.

Judgement Doesn’t Equal Payment

Finally, keep in mind that even if the court orders the other party to pay your attorney’s fees, that doesn’t mean you will ever see that money.  In America we don’t have debtor’s prison.  So, under most circumstances, actually collecting the money isn’t that easy.  When the overall case is still underway, the chances of collecting the fees is higher.  However, when the parties agree that one will pay the other in a final order, unless that amount is paid in full at or before the order is entered, it’s often hard to actually collect that money.

Attorneys Fees are a Reimbursement

Your lawyer will require payment from you for the cost of his or her legal services.  You will need to pay your lawyer according to the terms of your contract.  If you receive an award for attorney’s fees during your case, that creates a credit in your account.  No lawyer we know works for free on a case in anticipation of attorney’s fees.  So, be prepared to pay for your lawyer in case fees are not awarded or are not eventually collected.  If you actually receive the attorney’s fees, then you are ahead of the game.  If you do not receive attorney’s fees, you are no worse off than you would be by hiring your lawyer.

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Youngblood Law, PLLC is a Fort Worth, Texas family law firm focusing on helping people get on with their new life by getting done with their old life.  This essay is intended for educational use only and is not a replacement for competent legal counsel.  If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC.  For more information contact us at 817-601-5345, find us on the web at www.youngblood-law.com.

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