Cole Law Group Blog
In many marriages, one spouse will be the primary breadwinner. If a couple is happily married, a significant disparity in income is often not a cause for concern, but if the couple decides to divorce, the lesser earning spouse is at a financial disadvantage and may wonder if he or she can afford the cost of an attorney. The law aims to protect the rights of all individuals, even individuals that cannot afford an attorney. Thus, in many divorce cases, the court will order one spouse to pay the other spouse’s legal fees. If you intend to end your marriage, it is in your best interest to consult a skillful Tennessee divorce attorney to discuss whether your spouse may be responsible for your legal fees.
Responsibility for Legal Fees
Like many states, Tennessee follows the “American Rule,” which traditionally requires a party to a lawsuit to pay his or her own attorney’s fees unless a statutory or contractual provision states otherwise. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). Nevertheless, Tennessee statutory law vests trial courts with the discretion to award one party his or her attorney’s fees in the context of a divorce proceeding, and some trial judges may deem such an award to be a form of alimony. See Tenn. Code Ann. § 36-5-103(c).
Under Tennessee law, there are four types of alimony: rehabilitative alimony; alimony solido, which is known as lump sum alimony; alimony in futuro, which is also referred to as periodic alimony; and, transitional alimony. Generally, an award of attorney’s fees constitutes alimony solido.
In addition, a contractual basis for an award of attorney’s fees often exists for divorcing or divorced parties when the parties have entered into a prenuptial agreement, postnuptial agreement, marital dissolution agreement, or other contract. If you think there may be a contractual basis to support an award of attorney’s fees in your divorce matter, you should consult with a knowledgeable family law attorney and get an evaluation of your potential options in the event of litigation.
Discretionary Factors the Court Will Consider
As with many decisions in divorce cases, the decision of whether the court will order your spouse to pay your legal fees ultimately rests within the discretion of the trial judge. In assessing whether to award attorney’s fees, the court will typically weigh several factors, including the earning capacity, needs, debt obligations, income (which includes money from retirement funds and trusts), and financial resources of each spouse. Financial resources include not only jointly owned property but also the separate assets of each spouse. Additionally, the court will evaluate the duration of the marriage and the age and mental and physical health of each spouse. The court will look at each spouse’s education and whether either spouse is unable to work due to being the primary caretaker of children born of the marriage. Finally, the court will evaluate whether the party from whom the attorney’s fees are sought has the ability to pay such fees.
If the court finds that the spouse seeking attorney fees has sufficient income or property to pay his or her own fees or expenses, the spouse will not be entitled to attorney’s fees. Instead, attorney’s fees are only appropriate when the spouse seeking such fees lacks adequate funds to pay for them. The court may also award a spouse attorney’s fees if he or she would be required to deplete his or her resources to pay an attorney. As such, if you are able to demonstrate that you are financially unable to pay an attorney, the court may order your spouse to pay your legal fees.
Speak with an Experienced Divorce Attorney
Divorces are not only emotionally draining, but they are often financially draining as well. If you wish to seek a divorce and want your spouse to pay your legal fees, it is prudent to speak with an attorney to discuss your rights. At Cole Law Group, our experienced Tennessee divorce attorneys can assist you in protecting your interests throughout the divorce process. You can contact us at (615) 490-6020 or via the form online to set up a meeting to discuss your case.