Attorney Fees in Michigan Family Law Cases: The Court has Spoken

Court of Appeals reinforced that parties who fail to follow court orders may be forced to pay attorney fees in Michigan divorce cases

Is it possible to be awarded your attorney fees in a Michigan divorce or family law case? The short answer: yes, but only rarely and only in particular circumstances.

In Richards v Richards, a recently published decision, the Michigan Court of Appeals has clarified that to be awarded attorney fees in a domestic relations action under MCR 3.206(C)(2), the party requesting the attorney fees must show that either:

  1. They are unable to bear the expense of the action and the other party is able to pay; or
  2. The attorney fees and costs were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

The meaning of the court rule mentioned above was reinforced in Richards, where the plaintiff (ex-wife) appealed the trial court order denying her request for attorney’s fees. Throughout the course of the divorce proceedings, Defendant (ex-husband) failed to cooperate with numerous court orders, thus forcing Plaintiff to incur additional legal expenses – to the tune of $12,000 to $14,000.

The Court held “that MCR 3.206(C)(2) provides two independent bases for awarding attorney fees and expenses.” Prior to the Richards decision, there was no published authority specifying that a party seeking attorney fees due to the other party’s refusal to follow a prior court order despite their ability to comply, need not demonstrate that they had an inability to bear the expense of the action.

Again, parties should be aware that Michigan family courts rarely require a party to pay the other party’s attorney fees. Michigan courts generally follow the so-called “American Rule,” which essentially provides that parties should be responsible for their own attorney fees. However, in instances where a spouse blatantly refuses to comply with a court order, and where such refusal causes the other spouse to incur additional legal fees, attorney fees may be awarded at the end of the divorce (or other family law) action.