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It is common to meet with a client facing a complicated and often expensive divorce case who asks 
“Can I have my spouse pay my attorney’s fees for this case?” The answer to the question is more complicated than the simple “yes” the client is hoping for, and it stands to benefit parties to know from the beginning what it takes to get attorney’s fees in a divorce case in Oklahoma. The short answer that we commonly give is “don’t bank on it” because attorney’s fee awards in family law cases in Oklahoma are like prizes in a Cracker Jack box: you ca hope for a good one but too often they are disappointing.
The American Rule of Attorney’s Fees
The topic of attorney’s fees begins with an understanding of what has been commonly been referred to as “The American Rule” in courts across the United States. The rule, which is more a default rule than a blanket mandate, provides that each party in a lawsuit should be responsible for paying their own legal fees in a case. The question of an attorney fee award was analyzed by the Oklahoma Supreme Court in the case of Thielenhaus v. Thielenhaus.
In that case the Court stated as follows:
"Widespread courthouse folklore - that either the prevailing party in the case or the principal spousal provider is under a duty to pay counsel fees in matrimonial litigation - is not the law in Oklahoma. It is a hard-to-repress legal myth. The terms of 43 Okla. Stat. 1991 § 110 plainly provide that either spouse may be required to pay ‘reasonable expenses of the other in the prosecution or defense of the action as may be just and proper considering the respective parties and the means and property of each.’ Counsel-fee allowances, which never depend on one’s status as prevailing party in the case, must be granted only to that litigant who qualifies for the benefit through the process of a judicial balancing of the equities.”
Many times clients anticipate that if they “win” their case, they will get their attorney’s fees paid for; however, it is hard to advise clients when even the Court considers the answer to the client’s question “folklore.” Prevailing parties are not entitled to having the other party pay their fees as a matter of right. The court will consider a number of factors that are not always clear when determining whether to award attorney’s fees in a case.
The Oklahoma Court of Civil Appeals stated in the case of Husband v. Husband that:
“An award of attorney fees does not depend on any one factor such as status as the prevailing party or the financial means of a party. In considering what is just and proper under the circumstances, the court in the exercise of its discretion should consider the totality of circumstances leading up to, and including, the subsequent action for which expenses and fees are being sought. Such circumstances should include, but not be limited to: the outcome of the action; whether either party unnecessarily complicated or delayed the proceedings, or made the subsequent litigation more vexatious than it needed to be; and finally, the means and property of the respective parties.”
So when you’re sitting at the table evaluating the cost involved to litigate your divorce, keep in mind that the judge in your case is going to look to see if one party unnecessarily complicated or delayed the proceedings, or made the litigation more vexatious than it needed to be, before they award attorney’s fees to either party. “Vexatious" is defined by Meriam-Webster as lacking sufficient ground and serving only to annoy or harass when viewed objectively. Black’s Law Dictionary defines the term as “without reasonable or probable cause or excuse; harassing; annoying.” It’s not uncommon for clients to feel like the other side’s actions in a case easily fit into this description. In fact, every client in a contested case will feel this way at some time; however, judges may not see it as anything other than a hard-fought litigation strategy. Frustration and anger doesn’t result in an attorney fee award.
How Other Awards in the Divorce Weigh In
If both parties are awarded enough assets in the divorce to pay their attorney’s fees, it is more likely than not that the court will expect each party to pay their attorney’s fees. The trial court isn’t necessarily trying to be harsh, they’re just following the understood law in Oklahoma. In the case of Ford v. Ford, the trial court actually ordered the husband to pay the wife’s attorney’s fees of $19,856.25 and expenses of $5,362.35. The Court of Appeals vacated the judgment for such fees and costs and the Oklahoma Supreme Court upheld the ruling.
In the Oklahoma Supreme Court’s ruling statement:
“In light of the division of property and substantial amount of cash available to the wife we find the trial court's order for fees and litigation expenses to be an abuse of discretion. Each party is able to pay its own attorney fees and litigation expenses and should do so.”
It has long been the case that each litigant in a case should bear their own costs, yet Oklahoma did change that rule in 2017 for a brief time, which would have required courts to award a prevailing party their attorney’s fees. This would have been an extreme application of law that would have had a negative impact on anyone wishing to resolve a dispute in court. For more information on this short-lived change in the law, see attorney Chris Smith’s commentary on News Channel 4 in Oklahoma City.
Oklahoma Divorce Attorneys Here to Help
Attorney’s fees can become a hot button topic in any litigated case, especially within emotional family law litigation. While the award of attorney’s fees should never be anticipated in a case, every litigant is entitled to asking for them, like the good advice most of received as children: it never hurts to ask.
The Oklahoma City family law attorneys at Ball Morse Lowe PLLC. are prepared to answer your questions regarding family law issues in a confidential and compassionate manner. No matter how complex or high-stakes your case, we are the team you can trust.
Call Ball Morse Lowe today to request a case evaluation!