Can I Make My Ex Pay for My Attorney Fees in a Michigan Divorce?

There’s one thing most divorced people would probably agree on about the end of a marriage: It’s expensive. From the division of real property and financial assets, to any alimony or child support payments decreed by the court, to the necessity of one or both parties to establish new residences, the costs just keep adding up.

Given all that, a person who is party to a divorce proceeding might ask, “Why should I have to pay all these attorney fees, besides? This is all my spouse’s fault anyway. They filed, not me. Why shouldn’t they pay?”

That sentiment may make sense on a personal level. But in practice, in a court of law, it’s not so easy.

The American Rule

A longstanding rule of the U.S. justice system states that, in general, the two opposing sides in any litigation are responsible for paying their own attorney fees, no matter who files the suit or, for that matter, which party wins or loses in court. This is called the American Rule, which contrasts with the practice under English common law. Under that system, the losing party is required to pay the legal costs incurred by the winner.

The rationale for the American Rule is that a plaintiff with a meritorious case shouldn’t be deterred from bringing that case to court out of fear of being stuck with a mountain of additional legal bills. One can argue for or against the American or English way of doing things, but if you’re involved in a divorce case in Michigan, the American Rule rules.

Two Exceptions

When it comes to domestic litigation, including divorce cases, there are two scenarios in which a party may ask the court that the opposing party pay their attorney fees, and the court may agree:

• When one party is truly unable to pay for their attorney fees and the other party does have the ability to pay for them; or
• Where one party’s misconduct during the litigation has caused the other party to incur legal fees or costs that are unnecessary or unreasonable.

There’s a celebrated example in Michigan case law of the “unnecessary and unreasonable” aspect. Schwartz v Schwartz, a case that originated in Oakland County, Michigan, dragged on from 2013 to 2018. In this acrimonious divorce, the original divorce trial court ordered the ex-husband to pay his ex-wife more than $68,000 for attorney fees. That’s a significant amount of money, but it only accounted for hours that the ex-wife’s attorney had to bill because of actions by the ex-husband that the court found unreasonable. The issue went before the court of appeal twice, and the original court’s ruling was upheld both times.

The moral of this story? While it is conceivable that, in some cases, one party in a lawsuit might successfully demand to recover legal costs, this could result in additional litigation. Perhaps years of litigation, and lots of additional stress.

The bottom line: Divorce always has costs—emotional, practical and financial. In most cases, the best course may be to try to resolve your case responsibly and promptly, and then get on with your new life.