The question a stay-at-home parent or financially dependent spouse asks first is the one nobody wants to say out loud. How am I supposed to pay for an attorney when my spouse controls all the money?
Michigan law answers it directly. A divorce court can order the spouse with income to pay all or part of the other spouse’s attorney fees, and it can do so while the case is pending rather than only at the end. What it will not do is hand it over automatically. Fees are not recoverable as of right. Reed v Reed, 265 Mich App 131 (2005).
The Two Authorities That Put Your Spouse’s Income in Play
Under the American rule each side pays its own lawyer unless a statute or court rule says otherwise. In divorce, two do. The statute is MCL 552.13(1), which lets the court in any divorce or separation action order one party to pay whatever sums the other needs to carry on or defend the case while it is pending.
That last part is the point. The power exists while the case is live. The rule is MCR 3.206(D), which lets a party ask at any time for an order that the other side pay all or part of the attorney fees and expenses tied to the case or to a particular proceeding in it.
What You Actually Have to Show
MCR 3.206(D)(2) supplies two independent bases for a fee award. Richards v Richards, 310 Mich App 683 (2015).
Need and ability to pay.
Under MCR 3.206(D)(2)(a) you must allege facts showing that you cannot bear the expense of the case, which the rule expressly defines to include the cost of the discovery the matter calls for, and that your spouse can pay. That discovery language is what decides high-asset cases. You may be able to cover a motion hearing and still have no way to fund a business valuation, a forensic accountant, or a deposition program. That gap is a stated ground in the rule.
The other spouse’s conduct.
Under MCR 3.206(D)(2)(b) fees are available where you ran them up because your spouse refused to obey an earlier court order he was able to obey, or ran discovery in violation of the rules. That basis looks only at behavior. In Richards the trial court found the husband had disobeyed its orders, then refused fees because of the property and support awards. The Court of Appeals held it had conflated the two bases. Under either one the burden is yours. Woodington v Shokoohi, 288 Mich App 352 (2010).
The spouse who cannot afford an attorney is very often the spouse who needs one most. Michigan law recognizes that, and a divorce in which only one side has counsel is not a fair process.
You Do Not Have to Be Broke
The most common reason a good fee request never gets made is a belief that you must be destitute to ask. You do not. A party is not required to invade the same assets she relies on for her support in order to pay her attorney, and she shows an inability to pay when her yearly income is less than the fees she owes. Myland v Myland, 290 Mich App 691 (2010).
Myland reversed a court that denied fees because it awards them only for egregious conduct, and because the wife could use her spousal support to pay her lawyer. That was an error of law. Support is not an answer to a fee request, and a court that declines to decide the request at all abuses its discretion. Loutts v Loutts, 298 Mich App 21 (2012).
A property award does not end the question either. Property division and attorney fees work in tandem, and a spouse can be ordered to pay the other side’s fees where the other side received insufficient liquid assets to cover them. Woodington v Shokoohi, 288 Mich App 352 (2010). A wife awarded over a million dollars was denied fees, while a wife who was still unemployed received them despite a substantial award. The headline number is not the test. Liquidity and need are.
Whether you prevailed on the other issues is not part of the test. Colen v Colen, 331 Mich App 295 (2020).
What “Non-Working Spouse” Covers
Stay-at-home parents present the strongest need case, because years out of the workforce and no independent access to funds are the facts the rule was written for. Retired spouses often have fixed income that cannot absorb fees. Unemployed spouses draw scrutiny, because a court can impute income from earning capacity where the unemployment is voluntary. Lower-earning spouses qualify too. A teacher married to a surgeon has income and can still show the required disparity.
Using Marital Funds for Your Own Attorney
Separate from a fee order, jointly titled accounts are marital money and both spouses generally have practical access to them while the case is pending. Many dependent spouses fund a retainer that way.
The court can restrain either spouse from dissipating marital assets, and MCL 552.13(1) separately authorizes it to order sums spent to conserve property. Those restraints run both directions, and a mutual order can freeze the account you were counting on.
What you draw comes out of your side of the estate at the end, so document every withdrawal and keep the amounts defensible. Judges do not penalize reasonable fees. They notice when a spouse empties an account.
What the Higher-Earning Spouse Should Know
When the disparity is obvious, contesting the motion usually costs more than contributing. The productive move is to negotiate a defined contribution into the temporary orders package and get the case moving.
Two things are worth knowing before you fight it. MCR 3.206(D)(2)(b) has nothing to do with your spouse’s finances, so disobeying an order you could obey, or running discovery as a war of attrition, produces fee awards against people who had a strong answer on need. And agreeing to generous spousal support does not settle the fee question. Myland and Richards are both reversals of courts that treated it that way.
Trying to win a divorce by outspending your spouse almost never works the way people expect. Michigan courts have tools to prevent it, and judges remember who tried.
Fees After Judgment and the Deadline Nobody Expects
MCR 3.206(D)(1) reaches a specific proceeding, including a post-judgment one, and appellate fees are available under the same subrule. Myland v Myland, 290 Mich App 691 (2010). But “at any time” is not what it appears. A fee motion must be brought within a reasonable time after the fees were incurred, and a wife who waited almost two years lost hers as untimely. Colen v Colen, 331 Mich App 295 (2020).
Frequently Asked Questions About Michigan Divorce Attorney Fee Awards
Sometimes, but never as a matter of right. Fee awards in domestic relations cases are authorized by both MCL 552.13(1) and MCR 3.206(D). Reed v Reed, 265 Mich App 131 (2005). You must move for them and allege either that you cannot bear the expense of the action while your spouse can pay, or that his noncompliance or discovery conduct drove up your fees.
Move for temporary orders as soon as the case is started. Under MCR 3.207 the court can enter ex parte and temporary orders on any matter within its jurisdiction, including temporary support and restraints on moving marital assets. The fee request goes under MCR 3.206(D). None of it waits for the final judgment.
No. You must show that you cannot bear the expense of this action, which by the rule’s text includes the cost of the discovery the case requires, and that your spouse can pay. A spouse earning $40,000 in a divorce with a business valuation and a large estate can meet that standard and still have a paycheck.
Possibly. Where the disparity is significant and your spouse cannot fund adequate representation, a contribution order is a realistic outcome. Fees can also be awarded against you for disobeying an order you could obey or for discovery conduct that violates the rules, and that basis does not depend on your spouse’s finances.
Michigan divorce attorneys generally charge $300 to $500 per hour. Total cost runs roughly $4,000 to $6,000 for an uncontested divorce without children and $25,000 to $75,000 or more for a high-asset or high-conflict contested case. Complexity, cooperation between the parties, and how long the case stays open are what move the number.
Protect Your Right to Fair Representation
A divorce where only one side can afford to litigate is not a negotiation. Michigan gives the dependent spouse a way to fix that, and the request is stronger when made early and pleaded to the language of the rule rather than to a complaint about who earns more.
Boroja, Bernier & Associates handles divorce and family law matters in Macomb, Oakland and Wayne Counties and across Southeast, Central and Mid-Michigan. Whether you need a fee contribution or are the spouse asked to make one, we will tell you what the law requires and what is worth arguing. To schedule a consultation, call (586) 991-7611.
About the Author
Joel Bernier, Esq. is a founding partner of Boroja, Bernier & Associates PLLC, where he leads the firm’s divorce and family law practice. He has practiced Michigan divorce and family law since 2010 (Bar No. P74226).
