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ATTORNEYS FEES ARE ONLY COLLECTIBLE IN DIVORCE IN MISSISSIPPI AFTER A SHOWING OF INABILITY TO PAY

Most people are under the impression that attorneys fees can be collected from their spouse in a divorce, particularly if the spouse is guilty of misconduct, such as cruelty or adultery. However, the Mississippi appellate courts have repeatedly ruled that a party may not collect attorneys fees unless they show that they are unable to pay them. This seems to mean that attorneys fees are only collectible in cases where the assets that might be awarded are at least equal to the attorneys fees. It also means that persons who do not have assets to pay their attorneys must either borrow the money to pay their attorneys or ask their attorneys to work without pay until a recovery can be allowed. This legal stance was recently confirmed in the case of Sullivan v. Sullivan, No. 2009-CP-10657–COA (Decided 9/14/2010). In that case, Natasha was granted a divorce from Gerard on the basis of Gerard’s adultery. Gerard represented himself and Natasha retained an attorney. The Chancellor awarded Natasha $2500 in attorneys fees. The Court of Appeals reversed, finding that the record contained no evidence of her inability to pay her fees. (Note: the rules pertaining to attorneys fees in contempt cases are different.)