It’s no secret that lawyers are expensive, and as a result, a concern at the forefront of many people’s minds when they’re considering – or going through – a divorce is attorney’s fees, and who is going to pay them. Many times, when a spouse is served a complaint for divorce, they will read over the document, and recoil in shock when they see that their husband or wife is asking that they be responsible for paying their attorney’s fees. While it may be a step too far for me to criticize this practice, given that you certainly will never be awarded anything by a court that you don’t ask for, I would be dishonest if I were to represent that I sometimes share my clients’ surprise at seeing such a request. That is because attorney’s fees can only be awarded in certain circumstances in this state.
Tennessee follows what is called “the American Rule” with respect to attorney’s fees, which states, broadly, that attorney’s fees can only be awarded pursuant to (1) a contractual provision or (2) a statute. In the particular context of divorce, the only time a contractual attorney’s fees provision would likely come into play would be a case with a pre-nuptial agreement. So, in the vast majority of cases, an award of attorney’s fees would be predicated upon a statutory ground for that relief. What I’ll focus on today is the most common statutory method for a spouse to recover attorney’s fees: alimony.
Tennessee Code Annotated § 36-5-121 is the ‘alimony statute’, and it describes when alimony can be awarded, and what types of alimony are recognized. Among the types of alimony – which is a complicated subject in its own right and a full discussion of which is outside the scope of this article – is ‘alimony in solido’ which is latin ‘for the whole’ and is proof positive that lawyers use latin phrases for no reason other than feeling smart, since ‘lump sum’ would make way more sense to almost any person reading the statute. Specifically, the statute reads that “alimony in solido may be awarded . . . in order to provide support, include attorney fees, where appropriate”.
It would be a reasonable surface level summary of alimony to say that it can be awarded (1) at the discretion of the trial court’s judge when (2) there is an economically disadvantaged spouse (3) who has a need for alimony and (4) in a marriage of an appropriate length to qualify. But you should understand that this summary only scratches the surface and in no way encompasses the entirety of how alimony works in this state. What we can take away from this summary, though, is that to answer the question posed by the title of this article in the most lawyerly way possible: whether your spouse will have to pay your attorney’s fees is going to depend on the facts of your case.
Those particular facts will be, in order of importance, the need of the spouse seeking the award, the ability of the other spouse to pay, the length of the marriage, and then the remaining other of the 12 statutory factors which I will refrain from listing here. So, if you consider the relative earning capacities of yourself and your spouse, you can probably begin to get an idea as to whether an award of attorney’s fees as alimony in solido from one spouse to another is something you should be seriously concerned about. That isn’t to say you shouldn’t seek your attorney’s advice on that issue in the context of your particular case, because you absolutely should – it is merely to point out that just because a lawyer has asked for his or her client to be awarded something by writing a few words on a sheet of paper, it doesn’t necessarily mean that the award of that relief is a foregone conclusion.
