Can I Seek Attorney Fees When My Spouse Causes Divorce Delays?

 Posted on November 26, 2024 in Divorce

Sometimes, a spouse who is perhaps not on board with a divorce persists in causing delays and taking unreasonable positions, dragging out the divorce longer than necessary and making it more expensive. This can also occur when one spouse argues about virtually everything for no other reason than to be contentious. The spouse who just wants the divorce over and done with can be tempted to walk away from his or her share of assets or from receiving spousal support that is well-deserved.

While it is understandable to be exhausted from a spouse who is unnecessarily causing the divorce to drag out, rather than giving up assets that are rightfully yours, seeking attorney fees from your spouse may be the better choice. If you find yourself in such an untenable situation, speaking to a knowledgeable Brookfield, WI divorce attorney from Bucher, Wolff & Sonderhouse, LLP can be your best course of action.  

What is "Overtrial" in Wisconsin?

In the state of Wisconsin, you can seek to have attorney fees paid by your spouse if the facts and circumstances, along with your spouse's actions, rise to the level of "overtrial." Overtrial is a Wisconsin-specific doctrine that can be asserted in family law cases when you believe the other party in your divorce or custody issue is being deliberately unreasonable, resulting in extra attorney’s fees and other adverse consequences.

Overtrial empowers the court to order the party that is dragging his or her feet to pay the other’s attorney fees, as it recognizes that the innocent party should not be required to bear the financial burden of the other’s conduct. A judge may also consider overtrial when one party fails to properly respond to orders or requests from the court, which forces the court to file motions to obtain that information.

The court may also determine that one party in a divorce has created multiple unreasonable delays and award attorney fees to the other party. When such an award is ordered, the court will not consider the offending party’s ability to pay or the other party's need. Further, an overtrial judgment is non-dischargeable in a bankruptcy proceeding.

An Example of Overtrial in Wisconsin

The wife in a Wisconsin couple whose divorce was finalized only thought finalized actually meant it was over. In fact, the litigation had only just begun. Within two months of the final divorce decree, the husband filed his first post-judgment motion. The next six years brought a never-ending flurry of one post-judgment motion after another.

After six exhausting years, the trial court found that the husband had engaged in overtrial. The court claimed the man engaged multiple expert witnesses who failed to defend his position while raising and repeating unnecessary matters that dragged out the issues already decided during the divorce. The trial court ordered the man to pay $25,000 toward his ex-wife’s attorney fees.

After a Wisconsin appeals court refused to hear the man’s appeal, he then filed for Chapter 13 bankruptcy relief. In response, the ex-wife’s attorney labeled the $25,000 debt a priority, non-dischargeable domestic support obligation under Section 507(a)(1) of the federal bankruptcy court. The bankruptcy court upheld this filing, citing the husband’s "scorched-earth approach to litigation."  

Contact a Milwaukee County, WI Divorce Lawyer

If your spouse seems determined to drag out your divorce for the longest time possible, you may be looking at significant attorney fees as a result. Since you are not the one causing the delay, ask your Milwaukee, WI divorce attorney whether overtrial can be claimed in your case to make your spouse pay your attorney fees.

In some cases, the mere threat of this remedy can result in a spouse suddenly becoming more reasonable. When you choose Bucher, Wolff & Sonderhouse, LLP to handle your divorce, you can rest easy knowing you have a strong legal advocate who will be watching your back and who really cares about your future. Call 262-232-6699 to schedule your free consultation.