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Texas Legislature Clarifies Ability of Trial Court to Award Attorneys' Fees in a Divorce in Response to Tedder v. Gardner Aldrich, LLP

The Texas legislature has responded to the Texas Supreme Court’s recent and controversial opinion in Tedder v. Gardner Aldrich LLP, by enacting House Bill 1366 to clarify a trial court’s power to award attorney’s fees in a suit for divorce.

The Tedder opinion made waves in the family law community by determining that attorney’s fees in a divorce are not necessaries (for which one spouse is typically liable for as support the other), thereby calling into question a trial court’s ability to award fees at all in a divorce. Judges and family law attorneys alike contemplated the potentially monumental impact this decision would have on cases going forward – some believing that the opinion completely eliminated a trial court’s ability to award attorneys’ in a divorce

In the midst of this confusion, the Texas Legislature quickly came to the rescue, adding subsection (c) to Section 6.708 of the Texas Family Code, which provides that for all cases filed on or after September 1, 2013, trial courts across this State may award reasonable attorney’s fees in a suit for divorce:

In a suit for dissolution of a marriage, the court may award reasonable attorney’s fees and expenses. The court may order the fees and expenses and any postjudgment interest to be paid directly to the attorney, who may enforce the order in the attorney’s own name by any means available for the enforcement of a judgment for debt.”

While the statue is a step in the right direction, aspects of a party’s entitlement to attorney’s fees in a suit for divorce remain murky. The statue leaves the discretion to award fees with the trial court, so attorney’s fees awards are far from certain and must be determined on a case-by-case basis. Also, it does not specify whether fees must be awarded from the community estate, leaving open the possibility for argument over whether fees can be awarded from a spouse’s separate estate (and the constitutional implications of divesting separate property).