Shifting Payment of Attorney's Fees: Proving Inability to Pay is Only 1/2 of the Battle

Potential family law clients occasionally come to a consultation with the impression that their spouse will be paying for their attorney's fees. While Michigan's court rules and case law does provide a mechanism for shifting the financial burden of attorney's fees and costs to another party, it is not easy.

MCR 3.206(C) states:

(C) Attorney Fees and Expenses.

(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

(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or

(b) 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.

The appellate decision in Stallworth v. Stallworth, 738 NW 2d 264 (2007) states that the appealing party who owed more than their yearly income in attorney's fees had met the first element of the evidentiary burden established in MCR 3.206(C)(2)(a).

On March 13, 2018, the Michigan Court of Appeals released an unpublished opinion in Safdar v. Aziz, MiLW No. 08-97190 (2018) again clarifying Stallworth. In Safdar, the Court clarified that the negative discrepancy between monies owed and monies earned in Stallworth should not be construed as a 'bright line' test, but rather one example of a party satisfied their evidentiary burden, considering the facts and circumstances of the case.

What does this mean for individuals who may be interested in filing a family law case? Inability to pay fees does not, in itself,satisfy evidentiary standard established by MCR3.206(C). Rather, inability to pay fees is only one half of the inquiry. A careful inquiry into the ability to pay by the other party is essential.



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