I recently defended a motion for temporary relief where I needed co-counsel to handle some of the preparation. When he asked about the need to draft his fee affidavit, I indicated we hadn’t sought temporary attorney’s fees. He was surprised. I asked him how often he had been awarded temporary attorney’s fees from a homemaking spouse. He couldn’t recall it happening. In my 30+ years of practice, I don’t recall it happening. That’s why I no longer bother asking for temporary attorney’s fees from a supported spouse.
In addition to the extreme unlikelihood of getting temporary attorney’s fees from a non-working spouse, there are a few other reasons not to seek such fees. There is a bit of additional work in seeking temporary attorney’s fees. Having a client incur fees where there is little likelihood of success is not a good use of the client’s retainer. Second, having to provide an itemized statement of time to the other side—especially when one now has to provide a preliminary fee affidavit five business days before the temporary hearing—provides the opposing party a bit of insight into one’s litigation strategy.
However, the best reason for not seeking temporary fees is strategic. I often defend temporary hearings where the fight isn’t over whether my client should pay temporary spousal support but over how much. When one is expecting to pay spousal support, one should not expect to get awarded temporary fees. Seeking temporary fees from a supported spouse makes one’s client appear greedy or bullying: a judge might well ask how the client expects a supported spouse to pay temporary attorney’s fees. Moreover, one can argue that because one’s client isn’t seeking fees, that client shouldn’t have to pay the other sides’ fees. That argument won’t always work but it has some merit. But that argument can’t be employed if one seeks temporary fees.
Not seeking fees at the temporary hearing does not foreclose one from seeking them at trial. However, at trial, one can likely demonstrate a good reason to make a supported spouse pay fees (an unreasonable litigation position or unreasonable litigation conduct). Moreover, at trial the supported spouse will likely be awarded assets from which such fees could be paid.
Given the unlikelihood of getting fees from a supported spouse at a temporary hearing and concerns over appearing a bully to a family court judge, when one represents the primary wage earner one should not reflexively seek fees at a temporary hearing.
