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Can I Make My Husband Pay for My Divorce?

In a manner of speaking, yes, but it is rare to find an attorney who will accept the responsibility of a case without any retainer unless there is a large marital estate and/or substantial income earned by the other spouse.  Whether or not ones entire fee will be paid is unknown until the end of the case.

Attorney fees may be awarded on a temporary basis when it can be shown that the requesting party cannot maintain the divorce or other family law action without the assistance of the other party (financial need which is based on lack of income, insufficient income or a great disparity between the parties’ incomes) and the ability of the other party to pay.   A motion must be filed and there must be a hearing before the judge.

Additional attorney fees may also be awarded under the judgment of divorce on the basis of financial need.  The award is within the court’s discretion.  The underlying rationale for a final award of attorney fees is that a person should not have to consume their assets to pay attorney fees when those same assets are being relied upon to provide for support for that person.

If there are sufficient liquid assets in the marital estate, each party can draw on those funds to pay attorney fees while the case is pending, even if those funds are solely from the employed spouse’s income, because income is a marital asset.

The Michigan court rules provide:

(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

(a) the party is unable to bear the expense of the action, 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. MCR 3.206(C).

The court rule also provides for payment of attorney fees when the other party can be shown to have wilfully violated a court order while having the ability to comply with the order.  An example would be refusal to pay court ordered support or some other obligation.

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David Caplan

David Caplan attended Tulane University and Wayne State University to receive his undergraduate degree, received his law degree from Detroit College of Law in 1974 and was admitted to the State Bar of Michigan in the same year. He has 37 years of practice experience in family law matters with more than half of those years dedicated solely to the representation of women.

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