Sometimes, when a potential client comes to see me, they’ve been planning their exit from the marriage for a year or more. They’ve been saving. Maybe they’ve received a bonus at work or maybe they set aside a tax refund.

Sometimes, however, the divorce is a surprise. The client hasn’t saved.  The spouse literally took off, emptied the checking account, and served the divorce complaint all, in the same week.  Oh, and by the way, the spouse who was supposed to be paying the mortgage, hasn’t.  Then there is the issue of how to feed and clothe the children.

Alabama law provides for the Judge in your divorce case to order the spouse with the money to pay, not only temporary support, but also attorney’s fees.  Of the factors the Judge to consider, in divorce cases, the most prevalent factors are 1) The Financial Circumstances of the Parties and 2) The Conduct of the Parties.

Generally speaking, Alabama, along with most other states, follows the “American Rule,” which basically means that each party to a legal action pays their own attorney fees.  However, as you can imagine, in a marriage in which one spouse works outside the home and one spouse cares for the home and children, access to money during a divorce might be a problem for the homemaker.

In Mobile County, Alabama, once a divorce is filed, the Court issues a standard order for the conduct of the parties while the divorce is pending.  First, the Court orders the parties to maintain the status quo with regard to paying the mortgage or rent, utilities, food, necessities, fixed credit obligations, etc.  This means that the spouse who normally pays for all of that stuff must continue doing so until further order of the Court.  If not, that spouse may be held in contempt of court and could be jailed.

Second, the Court orders that savings accounts, furniture, and other household assets not be disposed of or withdrawn by either party.  I can’t emphasize this strongly enough.  If the word “divorce” passes the lips of your spouse, you should start tracking the balances of your bank accounts daily.  Yes, if they drain an account, sooner or later, the Court will hold them accountable, but that doesn’t put food on the table right now.

The third portion of the order states that, if there are children, visitation with the absent parent should be reasonable and regular.  Finally, the order prohibits violent contact and threats of violence between the parties.  These are subject for another day. I said all of that, to say this.  If your spouse loses their mind, drains the bank account and files for divorce, don’t give up hope.

While lawyers can’t take divorces on a contingency basis, there are a few of us who will still take a chance on a case where there’s a real need and it’s clear that the party making all the problems has the money to foot the bill. Once we meet and establish the possibility that, due to the financial circumstances of your marriage and the conduct of your estranged spouse, a reasonable argument can be made that he or she should have to pay your attorney fees, we will sign an agreement as to my representation and how much it will cost.

I will keep detailed records as to the work and time spent on your case and submit that bill to the Court, along with a request that the other side pay the bill.  The request, or motion, will detail the reasons why your bill should be paid by your estranged spouse.  There may be a hearing at which both sides will argue their case to the Judge.  The Judge can order all of the amount requested, a portion of the amount, or none of the amount.

No attorney can guarantee that the Court will see it your way and the bill doesn’t go away just because the Judge doesn’t award all or part of the fees.  We’ll work out something.  Just don’t let your estranged spouse intimidate you or force you into a one-sided agreement because you think you have no choice.  Call me at 251-445-0891, or email me at ron@mcbaylaw.com and I will help get you on the right track!

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