There is a saying in Roger L'Estrange's Aesop's Fables noting that "he that has the Longer Sword, shall never want, either Lawyers, or Divines to Defend his Claim." Roger L'Estrange, Fables of Aesop and Other Eminent Mythologists, with Morals and Reflections and Fables and Stories Moralized: Being a Second Part of the Fables of Aesop. Put another way, money talks, and those parties that maintain the vast control of it in a divorce oftentimes attempt to wield power and influence at the courthouse. Every family lawyer has encountered those potential clients who cannot pay or replenish a retainer in a divorce or custody dispute, because they have little or often no access to the community estate and the other spouse controls the purse strings. Lawyers should not be dissuaded from representing these clients, however. With diligence and preparation, practitioners can often successfully obtain interim fees as well as a fee award at final trial in family law matters, which helps level the playing field. In order to accomplish this, counsel must first identify statutory grounds that will support a claim for attorney fees. Courts cannot award fees without the proper legal basis to do so. Below are several bases for recovery in various types of family law proceedings as well as requirements which must be met in order to obtain a vital fee award for your client.

Divorce

In a suit for divorce, the Texas Family Code provides that a party may seek and obtain interim fees from the other spouse in a temporary orders hearing, and/or legal fees at final trial as part of the division of the community estate.

Temporary Orders

Texas courts have broad discretion to award fees during temporary orders for the protection of a financially disadvantaged party as well as the preservation of property. To be successful in obtaining interim fees in a temporary hearing, there must be satisfactory proof that the client does not have access to or control of sufficient community funds to pay his or her counsel. The court must weigh the needs of the non-monied spouse against the other party's ability to pay fees from the community estate. When presenting evidence, make sure to identify certain assets or funds on account that the court can order payment from for interim fees. If cash is not readily locatable or available, the court can order community property to be leveraged or sold for interim fees. When balancing the needs of the parties and awarding interim fees, put on proof that there are sufficient assets available to pay fees for the disadvantaged spouse. While the court has broad discretion, the court cannot make an award that would otherwise render the paying spouse destitute. Also, make sure to request interim fees for future work anticipated to be conducted in the case as opposed to fees incurred which are owing or past due. The court does not have the authority to award past due fees in a temporary hearing; only anticipated, interim fees. To make it easy for the court, prepare an exhibit which lays out all estimated fees, itemizing out what work is expected to be done during each stage in the case. This includes breaking out your hours for anticipated discovery, depositions, hearings, mediation and final trial.