Archive for August, 2011

12
Aug
11

You Don’t Pay My Bills . . . Or Do You??

Nebraska law allows for the recovery of temporary attorney’s fees in divorce actions, but also in child custody litigation that later ensues. Neb. Rev. Stat.§ 42-367 states in full:

“In every action for dissolution of marriage or legal separation, the court may require the husband to pay any sum necessary to enable the wife to maintain the action during its pendency. When dissolution of marriage or a legal separation is decreed, the court may decree costs against either party and award for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.”

The Nebraska Supreme Court in Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979) interpreted NEB. REV. STAT. § 42-367 to allow for a party to recover temporary attorney’s fees when a suit for modification of custody is brought. In Nimmer, the mother was awarded custody in the parties’ divorce. However, the father subsequently brought a modification action seeking custody of the minor children. The father’s petition for custody was denied and the father appealed the trial court’s award of temporary attorney’s fees to the mother. The Nimmer court held the following:

“The court may allow attorney’s fees, both temporary and final, §§ 42-367 and 42-351, R.R.S. 1943, as amended. The authority of the court to allow attorney’s fees continues until the subject matter of the divorce suit is finally settled and determined. The decree of a District Court in an action for the dissolution of marriage, insofar as minor children are concerned, is never final in the sense it cannot be changed (citation omitted). Thus the court has continuing jurisdiction.”

Therefore, it is appropriate to ask for the other side to pay your attorney’s fees in not only dissolution actions, but also actions for modification of child custody. In particular, the financial equities of the parties often dictate that the Defendant in the modification action is entitled to temporary attorney’s fees to allow them to to defend the action pursuant to NEB. REV. STAT. § 42-367. So, sometimes, the party bringing the child custody modification action may end up pay my legal fees so I can defend the action for my client.

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