“Loser Pays” Court Cost Rules in Family Law

It’s a pretty common understanding among those of us who watch shows like Law & Order or read about corporate lawsuits: when there’s a big court case and neither side is ‘The State of XYZ,’ the side that loses the case pays the court costs for the side that won. Of course, that understanding isn’t terribly correct — the American standard is that each party pays their own legal fees except in rare circumstances — but the mechanism does exist. Since Gucciardo Family Law is just that — a Family law practice — we’ll talk about how the concept of ‘loser pays’ applies to family law, because it’s a bit different.


MCR 3.206 (C)

  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:
    1. the party is unable to bear the expense of the action, and that the other party is able to pay, or
    2. 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.

There’s the relevant portion of Michigan State law, as referenced in the decision Richards v Richards, published this June. In the linked case, the ex-wife (the plaintiff) had requested that her husband be made to pay the trial fees, and that request was denied. But the divorce proceeding had been absolutely riddled with instances of her ex-husband ignoring several court orders. The appeal laid out how the husband’s actions caused an additional $12,000 or more in court fees for the plaintiff.

This is actually fairly important, because prior to the Richards v Richards decision, the passage in the law above was generally interpreted as though line a. ended with an “and” instead of an “or;” you were forced to prove that would couldn’t afford to pay and that the other party hadn’t followed the court’s order(s). Now, however, it’s more important than ever that you heed every order the judge hands you as you progress through a divorce, child custody, or any other adversarial family law proceeding.

One last important note: the Richards v. Richards decision above does clearly note that the amount of court costs sought by the plaintiff only covers the court costs incurred by the defendant’s violation of the court order. So you don’t get to watch for the other party to break a court order and then attempt to drop 100% of your court costs in their lap. They only pay for the trouble they caused; you are always on the hook for the normal costs of the proceeding.

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