Partial Inability to Pay

Clients come to see me all the time with the perception in a divorce case that the party at fault has to pay the attorney’s fees.  I blame television and bad information from various friends of the potential client normally for that perception.    The law in Mississippi is pretty clear.  In a divorce case or pretty much any other case in chancery court there are essentially three ways to get attorney’s fees:

(1)     Party has the inability to pay;   Voda v. Voda, 731 So.2d 1152, 1157 (¶29) (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (¶26) (Miss. Ct. App. 2000). 

(2)      One party is in contempt of Court for something;   Mabus v. Mabus,

               910 So. 2d 486, 489 (¶8) (Miss. 2005) (quoting State v. Blenden, 7
               48 So. 2d 77, 87 (¶33) (Miss. 1999)).

(3)    Party has done something to subject them to sanctions:  e.g. Rule 11, §11-55-1, §93-5-23,     §93-5-24, Rule 37,  etc.

Most of the chancellors I appear in front of believe that inability to pay is a fairly high standard.  It is often hard to show that the client has the total inability to pay because the party would probably not have a lawyer if that was the case. 

That being said, I believe that Robinson v. Newsome, 88 So.3d 767 (Miss. Ct. App. 2011) carves out a useful tool.  In this case, the chancellor found that Ms. Newsome had the partial inability to pay her attorney’s fees and ordered Mr. Robinson to pay a portion of them.  Mr. Robinson appealed pro se arguing, among other things, that Ms. Newsome had not shown the total inability to pay.  The Court of Appeals affirmed the ruling of the trial court that Ms. Newsome was entitled to have a portion for her attorney’s fees paid by Mr. Robinson. 

I believe this may be a useful tool where a client has the ability to pay you something, but not much.  The opinion seems to make the standard  lower than the total inability to pay standard and is a useful tool to consider.