Washington’s Court of Appeals has given trial courts more room to order a wealthier spouse to pay a poorer spouse’s legal fees, even when a prenuptial agreement says each side must cover its own costs. The ruling, filed on 29 October by Division Three of the Washington Court of Appeals, clarifies that judges are not limited to awarding fees for work directly related to parenting or child support. They may also award reasonable fees incurred in other aspects of the divorce, despite a prenuptial agreement containing a fee-waiver clause. The court reached this conclusion while reviewing the case of a couple whose prenup required each spouse to bear their own legal costs in the event of a divorce.
A prenup with a fee waiver
In 2018, the Washington couple signed an antenuptial agreement. At the time, the husband’s net worth exceeded $15 million, while the wife’s was about $175,000. In the prenup, they agreed to pay their own attorney fees in any dissolution or maintenance case. They married in July 2019 and had a child. The wife was a stay-at-home mother for most of the marriage. According to the filed opinion, she drained her savings paying half of the family’s monthly expenses during the marriage.
Separation and divorce
A couple of years into the marriage, they hit rock bottom. The wife left in July 2022 and obtained a domestic violence protection order. The husband soon filed for legal separation and then filed for dissolution.One unusual aspect of the case involves a 2018 Porsche 911 Cabriolet. The husband bought the car and gifted it to the wife during their marriage. He also posted it on social media. The court ordered him to return the wife’s personal items, including the car, within 30 days. He did neither. He told the court that the car was at a dealership, but it was actually with an exotic car consignment dealer, where it had been for six months before the order. The court found Mark in contempt four times over the course of the case and found him intransigent three times. It imposed $5,000 in sanctions after the Porsche episode.
The wife asked for attorney fees
In April 2023, the wife sought her first award of legal fees, having already incurred $131,229.05 in fees and costs. The court ordered the husband to pay $35,000. In January 2024, she sought a second award of $189,253.24, arguing that the agreement could not prevent her from recovering fees related to parenting issues. The court ordered $40,000 for child-related litigation.The wife later asked the court to reconsider and filed a supplemental declaration stating that she owed her attorney $277,710.29. Her lawyer wrote that his firm had borrowed heavily to cover the shortfall. The court eventually awarded $188,911.49, reducing the request by offsetting expert and guardian ad litem fees, applying the husband’s sanctions and cutting charges it considered wasteful or duplicative.The question was really about how broadly the court’s 1999 decision in In re Marriage of Burke should be applied. In that case, the court ruled that a prenuptial agreement cannot prevent a parent from seeking legal fees for disputes involving parenting plans.The husband in this case argued that the ruling applied only to those matters. However, the court disagreed. It said judges should have the discretion to award legal fees in divorce cases involving parenting plans and child support, even when the fees relate to other aspects of the divorce. The majority explained that without this discretion, a wealthier spouse could prolong other disputes until the financially weaker spouse could no longer afford a lawyer.The appeals court did not decide whether the specific legal fee award to the wife was correct. It sent the case back to the trial court for further consideration. On appeal, the court said the wife may recover reasonable fees, although the amount is a factual matter for the trial judge.