Generally, if someone wants to hire an attorney to represent them in a family law case, they are responsible for hiring and paying attorneys’ fees. Sometimes after the case has started, a party can ask the court to “fee shift.” This article includes a list of the Texas Family Code’s fee-shifting provisions.
What is fee shifting?
Fee shifting is when the court orders one party to pay for the other party’s attorneys’ fees.
Fee-shifting statutes and rules vary. Talk to a lawyer to see if this is a request you can make in your case.
When could fee shifting help my divorce case?
In a divorce, one spouse may be the higher wage earner or is in control of the financials. This may prevent the other spouse from using community funds to pay for an attorney.
After the divorce is filed, a spouse can file a request for temporary orders. Among other relief, the party can ask the court to order one spouse to pay for the other’s reasonable attorney’s fees and expenses as part of the temporary orders. Texas Family Code 6.502(a)(4). What is “reasonable” will depend on several factors.
A court can award reasonable attorney’s fees and expenses to a party in the Final Decree of Divorce. Read Texas Family Code 6.708.
I sued to enforce the property division. Can I get attorney’s fees?
Texas law lets the court award costs in a proceeding to enforce a property division, just like in other civil cases. Texas Family Code 9.013. This type of lawsuit is a post-judgment proceeding filed after the divorce has been finalized and a Final Decree of Divorce has been entered.
The court may also award reasonable attorney's fees in a property division enforcement suit. Texas Family Code 9.014. The court may order the attorneys' fees to be paid directly to the attorney, who may enforce the order for attorneys' fees in the attorney's own name by any means available for the enforcement of a judgment for debt.
If you need to file a lawsuit to enforce the property division in your Final Decree of Divorce because the other spouse would not follow it, talk to a family law attorney about your situation. Read more about enforcing the property division in a divorce decree.
What if family violence has occurred?
Fee shifting is available when family violence has occurred.
The court may assess reasonable attorney’s fees against a party found to have committed family violence or if the parties agree to the protective order. The award is compensation for the services of a private or prosecuting attorney or an attorney who works for CPS in getting the protective order. In deciding the amount of attorney’s fees to award, the court must consider the income and ability of the party to pay. Texas Family Code 81.005.
If a victim of family violence seeks a protective order, the court must require that the party whom the protective is against will pay:
- the $16 protective order fee,
- the standard fees charged by the clerk for serving the protective order,
- the costs of the court, and
- all other fees, charges, or expenses incurred in connection with the protective order.
This is true unless the party who committed family violence is indigent or shows good cause that they should not have to pay. If the parties agree to the protective order, the court may consider assessing costs but is not required to. Texas Family Code 81.003.
How does fee-shifting work when children are involved in my case?
A court can order a parent to pay the other parent’s attorney fees in a request for temporary orders involving children only when the other parent can show evidence that attorney’s fees were necessary for the safety and welfare of the child. Texas Family Code 105.001(a)(5).
This is true for temporary orders in the following types of lawsuits: a divorce with a child, a suit affecting the parent-child relationship, a modification, or an enforcement. A parent can also ask for attorney’s fees and expenses in a request to modify a prior temporary order.
Additionally, in a suit for sibling access under Texas Family Code 153.551, attorney’s fees can be awarded against a disputing party if the court finds reasonable access is in the child’s best interest.
Are attorney’s fees available in a suit affecting the parent child relationship (SAPCR)?
Yes. In a SAPCR, the judge can render a judgment for reasonable attorney’s fees and expenses against one parent and in favor of the other parent. The court can order the judgment, along with post-judgment interest, be paid directly to the other parent’s attorney, who may enforce the debt by any means available. Texas Family Code 106.002.
Additionally, in a SAPCR or a habeas corpus proceeding, the court may order costs to be paid by one parent for the other. Texas Family Code 106.001. To read more about your court-ordered rights to possession of a child when the child’s other parent refuses to return or surrender the child, see How to Enforce Visitation.
What if the other parent filed a frivolous modification lawsuit against me?
If the court finds that a suit for modification is filed frivolously or is designed to harass a party, the court is able to assess attorneys' fees as costs against the offending party. Texas Family Code 156.005. Read more about frivolous or vexatious litigants in family law cases.
The Obligor has not been paying child support and I had to file an enforcement. Am I entitled to attorney’s fees and costs?
Yes, you may be. The obligor is the person ordered to make child support payments under a court order.
Suppose an enforcement of support has been filed and the court finds that the Respondent obligor has failed to make child support payments. In that case, the court can order them to pay for the movant’s (person who filed, or moved, for the enforcement suit) reasonable attorney’s fees and all court costs, in additional to the support arrearages. See Texas Family Code 157.167(a).
The court may waive the requirement that the Respondent obligor pays attorney's fees and costs if the Respondent obligor proves good cause why they did not comply with the order. The court will let you know their reasons to support their finding and decision. Texas Family Code 157.167(c).
But if the Respondent obligor is held in contempt for failure or refusal to pay child support and the Respondent obligor owes $20,000 or more in child support arrearages, the court may not waive the requirement that the Respondent obligor pay attorney's fees and costs unless the court also finds that the Respondent obligor is involuntarily unemployed or is disabled, and lacks the financial resources to pay the attorney's fees and costs. Texas Family Code 157.167(d). Read more about enforcing your child support order.
The other parent is denying me possession and access to our child. Can I get attorney’s fees for the violations?
Yes, but you must file an enforcement lawsuit against the violating parent. If the court finds the other parent failed to comply with the possession and access terms of your court order, the court shall order the violating parent to pay your reasonable attorney's fees and all court costs in addition to any other remedy, like makeup visits. See Texas Family Code 157.167(b).
Additionally, if the court finds that the enforcement of the order with which the other parent failed to comply was necessary to ensure the child's physical or emotional health or welfare, the attorney’s fees and costs may be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding. This could include any requests for habeas corpus when there is a court order or a writ of attachment when there is not a court order.
I believe the other party is abusing the discovery process, can I ask for attorney’s fees in having to ask the court for compliance?
Discovery is the process of gathering and exchanging evidence for a court case from the other side. Both sides must follow strict requirements when turning over and asking for evidence.
If the other party fails to comply with proper discovery requests or obey a court order to provide or permit discovery, the court may assess reasonable expenses, including attorney’s fees, against the failing party and in favor of the other. If the failing party can prove the failure was substantially justified or other circumstances would make the award unjust, the court may decide not to assess fees. Texas Rules of Civil Procedure 215.2(b)(8).
Discovery can be a complicated process. You should speak to a lawyer if the other party fails to comply with the discovery rules.
In my family law case, the other party is filing frivolous pleadings and motions, what can I do?
Under the Texas Civil Practice and Remedies Code, a party can file a motion for sanctions. The motion should describe specific conduct about the filed pleadings and motions, for example, if they are presented for an improper purpose if they are intended to harass or cause unnecessary delay, or needless increase in litigation costs.
If you prevail on your motion for sanctions, the court may award reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. The court may award the prevailing party all costs for the inconvenience, harassment, and out-of-pocket expenses incurred or caused by the subject litigation. Texas Civil Practice and Remedies Code 10.002.
My divorce was granted and an appeal was filed. Am I able to get attorney’s fees?
Yes. An appeal is a party’s request to review a lower court’s decision. The first appeal goes to the intermediate court or the court of appeals. And a final appeal for a family law case would go to the Texas Supreme Court.
For appellate attorney’s fees, you must request reasonable appellate fees during the final hearing or trial on the merits. Appellate fees awarded at the trial court level will be hypothetical or a projected amount. This is because the appellate attorney’s fees have not yet been incurred. You should offer proof of appellate attorney’s fees at your trial, no matter the outcome you think you will get.
This means making two predictions: winning your case and having to defend against an appeal from the opposing party, and losing your case and deciding to file the appeal yourself. A Texas court has found that “the court may even award fees against the successful party when it is in the best interest of the child.” Read the In re B.A.B. case.
You may also be able to get attorney’s fees pending the appeal. A spouse may ask for temporary orders when the appeal is pending, or a court can make temporary orders on its own before the appeal is heard. As part of the temporary order, the court may order one party to pay reasonable and necessary attorney’s fees and expenses for the other party. Notice must be given for the temporary orders hearing pending appeal. The court must find that the temporary orders authorizing attorney’s fees to one party are equitable and necessary for the preservation of property and the protection of the parties during the appeal. Texas Family Code 6.709(a)(2). This is a different standard from the request for appellate fees during the trial court hearing.
The appeals process can be very complex and takes hard work. If you have questions about the appellate process, talk to a family law appellate lawyer about your options and protecting your interests before and during an appeal.
What if an appeal of my family law cases involves my child?
Texas Family Code 109.001(a)(5) concerning temporary orders on appeal in a SAPCR allows the court to make any order necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal as the court may deem necessary and equitable, “including awarding attorney’s fees.” Temporary orders before a final order must be for the safety and welfare of a child, while temporary orders pending appeal must preserve and protect the safety and welfare (hopefully) secured by the judgment rendered.
Additionally, a trial court may, without abusing its discretion, make orders concerning payment of appellate attorney's fees that protects the best interest of the child. Read the In re Jafarzedah case.
Can the court award attorney’s fees if spousal maintenance was ordered in our divorce?
If the court ordered a party to pay spousal maintenance and the paying party, or obligor, fails to pay, the receiving party, or obligee, can file an enforcement action.
Beginning in cases filed after September 1, 2021, the court may order the obligor to pay reasonable attorney’s fees incurred by a party to obtain the enforcement order, all court costs, and all fees charged by a plan administrator for a qualified domestic relations order (QDRO) or similar order. Texas Family Code 8.357.
A QDRO or similar domestic relations order permits payment from a pension, retirement plan, or other employee benefit of an obligor to an alternate payee (the obligee) to satisfy amounts due under a spousal maintenance order.
All fees and costs ordered as part of a spousal maintenance enforcement order may be enforced by any means available for the enforcement of a judgment for debt.
What if my former spouse and I included contractual alimony as part of our agreed divorce?
Contractual alimony in Texas is different from spousal maintenance. A court can order spousal maintenance only in limited circumstances. Read the law on spousal maintenance in Chapter 8 of the Texas Family Code.
Contractual alimony is not enforceable under the Texas Family Code. A former spouse’s failure to follow through with contractual alimony should be addressed in a breach of contract lawsuit.
Beginning September 1, 2021, a person may recover reasonable attorney’s fees from an individual for a breach of a contractual alimony obligation. Texas Civil Practice and Remedies Code 38.001.
Can I ask for a court-appointed attorney?
In private family law cases, parents are not entitled to a court appointed attorney to represent them. This includes cases like divorces, suits affecting the parent-child relationship, modifications, and some enforcements. Therefore, you are responsible for your own attorney’s fees.
When the Department of Family and Protective Services (DFPS), Child Protective Services (CPS) is involved in your case and you are a party to a legal procedure in a suit by a government entity to protect the health and safety of your child, you may be eligible for a court appointed attorney. For help and information on dealing with CPS, read here. You can also call the Family Helpline and speak with an experienced child welfare attorney about Child Protective Services (CPS) issues in Texas.
If you are an obligor (i.e., the parent paying child support) and the Office of the Attorney General has filed an enforcement against you for past due child support or medical support, you may be entitled to a court-appointed attorney, as well. The court first has to determine if incarceration is a possible result of the enforcement proceedings. The court must inform an obligor parent, who does not already have an attorney, of their right to be represented by an attorney. The parent must show they are indigent and in opposition to the suit for the right to a court-appointed attorney. Read Texas Family Code 157.163.
What do I have to show the court to secure an award for attorney’s fees?
To secure an award of attorney’s fees from the other party, the requesting party must prove the following:
- That recovery of attorney’s fees is legally authorized, and
- The requested attorney’s fees are reasonable and necessary for legal representation.
It is important to know the statutes, as listed above, to make sure your request for attorney’s fees is legally authorized.
Also, remember that what is “reasonable” will depend on the facts and circumstances of your case. Courts will need to know:
- the reasonable hours worked or to be worked,
- the reasonable hourly rate for an attorney,
- the particular services performed or to be performed, the amount of time to perform the services, and
- who performed (or will perform) the services and when.
You will need to present the prevailing market rate in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.
You also must plead for your attorney’s fees properly. You may waive the claim if you do not specifically plead for attorney’s fees. You may want to talk to a lawyer about limited-scope representation for drafting to ensure your pleadings are correct. You also have to prevail for the fee-shifting to occur. Prepare all of the evidence you need to present your claim.
If you need to request public information, read about the Texas Public Information Act.
This article discusses when to hire an attorney in a family law case, how to choose one, and options for affordable legal representation.
This article explains the limited right to a lawyer in family law cases in Texas.
This article lists resources for people with low incomes who are divorcing.
This article explains ways to talk to the other side's lawyer if you are representing yourself.
This article explains "limited scope representation," which is one way to make hiring a private attorney more affordable.
Divorces can be painful and complex. That is why most people seek legal help. This is a resource for those who accept the challenge to be their own...