The issue of whether a Texas divorce substantive can order unique spouse to salary all or part of the other spouse’s divorce-related attorney fees has approximately of a checkered past. A regenerated statute, which became effective September 1, 2013, seeks to make the law in this area less unclear. However, this Dallas attorney suspects that the new law might informally become known as the “Texas Divorce Attorneys’ Full Employment Act of 2013,” as the fresh law, in addition to providing divorce lawyers with a new source for payment of their fees, appears to have created many more legal questions that it has answered.
In 1950, the Texas Supreme Bar acknowledged that spouses owe each other a reciprocal duty like support. In former words, to the size the financial ability to do so exists, combined with a corresponding need, a married person must provide his or her spouse with the “necessaries” like life. The Court held that “necessaries” consist of things like food, clothing and shelter, but not attorney fees. Carle v. Carle, 234 S.W.2nd 1002, 1005 (Tex. 1950).
In a clarification of Carle, almost two and a half decades later, an intermediate Texas appellate court explicitly stated that there exists no statutory authority for an award of attorney fees in Texas divorce cases. In re: Marriage of Jackson, 506 S.W.2d 261, 267 (Civ. App.-Amarillo 1974).
Texas family courts however – perhaps prohibition unlike some courts in other jurisdictions – did hardly let the absence concerning statutory authority get in their way of doing what they wanted to do. Awards of attorney fees in Texas divorce cases have commonly been made from the parties’ so-called “community estate,” that is, by an unequal division of their marital property, all amidst the judicial approval of the state superb court in Carle. (If marital asset is actually of the “community property” variant, it must, by definition, be prorated equally. To do otherwise is to repudiate the very concept of community property itself. To the expanse that Texas refers to its system about marital property essentially being community property, its system of marital trait is mislabeled. Call it what you will, nonetheless it simply is not community property. But that is a dissolution discussion.)
Following In re: Marriage of Jackson, in 1974, all was relatively quiet on the issue regarding attorney allowance awards in Texas divorce cases until Tedder v. Gardner Aldrich, LLP, came along in 2012.
Tedder v. Gardner Aldrich, LLP arose in an phenomenal – that is, improper – procedural context. Gardner Aldrich was the law firm that represented Mrs. Tedder in her divorce. After a jury trial, Gardner Aldrich withdrew like Mrs. Tedder’s counsel. Notwithstanding that its fee contract was with Mrs. Tedder only, Gardner Aldrich then intervened in the Tedder divorce case and asked the disunion court to order Mr. Tedder to pay Mrs. Tedder’s attorney fees.
The Tedder divorce case ultimately settled, with a stipulated judgment being entered that required Mrs. Tedder, but not Mr. Tedder, to pay Garder Aldrich’s fees. Portion speed thereafter, Mrs. Tedder filed for bankruptcy and received a discharge of her debts, including $190,000 in attorney fees she owed to Gardner Aldrich. Gardner Adrich then appealed the Tedder stipulated divorce judgment.
To skim Part II, click here: http://lapinlawtx.com/blog/?p=90
Attorney Dallas TX 75244
Lapin Law Offices, P.C.
5001 Spring Valley Road, Group 400 East
Dallas, Texas 75244