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Trial court erred in plaintiff-ex-wife's attorney fee award.

The parties were married in 1998 and their divorce was finalized in 2015. Following entry of the judgment of divorce, both parties filed motions for attorney fees. Defendant argued that he was entitled to attorney fees because plaintiff had driven up the cost of attorney fees by her failure to both cooperate during her deposition and to disclose information during discovery. In addition, defendant asserted that he had had to take out two loans in order to pay his attorney fees.

Plaintiff informed the court that her attorney fees totaled over $100,000 at the time of the hearing. Plaintiff also alleged that defendant had driven up the cost of her attorney fees by deposing her for an unreasonably long time, and asserted that she, too, had taken out loans in order to pay her attorney fees.

Plaintiff testified during a hearing on the parties' motions but was interrupted by the trial court. The trial court then asked counsel for both parties to make brief remarks, and stated that it would decide "what is owed by whom and how much" based on the parties' respective incomes, tax returns, and their bills.

The court issued a written opinion and order awarding plaintiff $37,500 in attorney fees. The trial judge did not offer any further explanation regarding his decision. The trial court did not indicate that it had awarded plaintiff attorney fees based on defendant's behavior pursuant to MCR 3.206(C)(2)(b). Rather, it stated that its decision would be based upon the income known about the parties.

A party who requests fees must allege facts showing that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

Defendant argued that the trial court erred by failing to find that plaintiff showed she was unable to pay her attorney fees, that he had the ability to pay them, that the fees were incurred, and that they were reasonable and necessary.

Review of the record confirms defendant's arguments. The party requesting attorney fees and expenses bears the burden of alleging facts sufficient to justify the award, by showing that the party is unable to bear the expense, and that the other party is able to pay. Absent findings by the trial court discussing the parties' financial resources, obligations, and expenses, the court lacked an adequate basis for assessing plaintiff's need and defendant's ability to pay the award. On remand, the trial court must also make findings as to the reasonableness of the fees, and defendant was entitled to a decision on his motion for attorney fees.

The outcome of a divorce can have a significant impact on your financial security. With so much at stake, it is critical that you have an experienced divorce lawyer on your side who is committed to protecting your rights. When disputes are not resolved properly it is important that your attorney has the trial skills and experience required in the courtroom.

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