Question: After 18 years of marriage, my wife and I allowed our disagreements to escalate so much that each of us hired lawyers and we found ourselves in the judicial system. After several months, saner minds prevailed. We went to counseling and decided that we were going to reconcile because we had resolved all of our difficulties. But my wife’s lawyer advised her not to reconcile with me or allow me back home under any circumstances until he was able to get back to the court to get his fees assessed against me because she had not fully paid him. My lawyer says my wife’s lawyer’s actions are inappropriate, but my wife does not know what to do. This is interfering with our lives.

Answer: Reconciliation through resumed cohabitation amounts to a condonation – that is, a conditional forgiveness – of the acts that the matrimonial action complained about. Condonation is conditioned on the implied promise that a spouse will not engage again in the acts that were complained about, or will not give the other spouse the idea that he or she is again committing a matrimonial offense.

While lawyers have a professional responsibility to advise clients about issues involving reconciliation (such as, to protect the spouse, entering reconciliation agreements that provide what will happen should there be another “bump in the marital road” before resuming cohabitation), it is most unusual to see a lawyer, in order to have his or her fees assessed, attempt to continue to advance or defend a matrimonial action that has been deserted by the husband and wife. In fact, the courts of most states have generally ruled that when a husband and wife abandon their lawsuit, condone each other’s alleged marital offenses, and resume cohabitation, the litigation is ended and cannot be continued by a lawyer for one of the spouses.

Most courts have ruled that to allow a lawyer to perpetuate a lawsuit after reconciliation and the resumption of cohabitation in order to get his or her fees assessed would be a violation of public policy because this would have a tendency to interfere with the reconciliation.

While the statutory law of all states allows awards of attorneys' fees and costs to be paid by the opposing side, unless already awarded by a court order, there appears to be no right of a lawyer to continue an action. This means that an attorney should not provide services for an economically dependent client based on faith that the economically dominant spouse will be required to pay the fees. If fees have not been paid, this is a contractual matter between the lawyer and client.

That said, it also appears that if a court has entered an order granting temporary attorney’s fees, there is a more serious question as to whether or not the lawyer is entitled to proceed to collection. In most states, since attorney’s fees are an extension of spousal support, the fees may be required to be paid to the spouse, not the lawyer.

Bottom Line: We don’t believe courts will enter orders assessing attorney’s fees as a condition of dismissing a matrimonial matter since we know of no law that allows lawyers to seek fees on their own behalf. Therefore, lawyers should not and can not prolong matrimonial actions against the wishes of their clients.

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