The Washington State Court of Appeals has granted trial courts broader discretion to order the wealthier husband to pay the poorer wife’s attorney fees, even when a marital prenuptial agreement stipulates that each party bears its own legal costs. The decision, published on October 29 by Division Three of the Washington Court of Appeals, clarifies that judges are not limited to awarding fees for activities directly related to custody or child support, but can award reasonable costs for other aspects of divorce, despite fee-shifting provisions in the prenup. The decision arose from the case of a couple who signed a prenuptial agreement in 2018, at which time the husband's assets exceeded $15 million, while the wife's were approximately $175,000. The prenup provided that each party would bear its own legal costs in the event of a divorce. The two married in July 2019 and had one child; the wife was a homemaker for most of the marriage, as the published opinion indicates, a period marked by the depletion of the wife's savings used to pay half of the monthly household expenses. The relationship seriously deteriorated shortly after the wedding; the wife left the marital home in July 2022 and obtained a domestic violence protection order against the husband. The husband subsequently filed actions for legal separation, followed by divorce petitions. An unconventional aspect of the case involved a 2018 Porsche 911 Cabriolet, purchased by the husband and given as a gift to the wife during the marriage, a car he also posted on social media. The court ordered the husband to return the wife's personal belongings, including the Porsche, within 30 days, but he failed to comply with any of the directives. He informed the court that the car was at a dealer, though it was actually parked at an exotic consignment dealership, where it had remained for six months prior to the issuance of the order. The court found Mark in contempt four times and willful three times during the proceedings, imposing sanctions of $5,000 related to the Porsche incident. In April 2023, the wife requested the initial award of attorney fees, having already accrued a debt of $131,229.05 for fees and costs. The court ordered the husband to pay $35,000. Subsequently, in January 2024, she sought a second award of $189,253.24, arguing that the prenuptial agreement could not prevent recovery of fees related to custody issues. The court allocated $40,000 for litigation-related matters concerning the children. The wife later requested a review of the decision and filed an additional declaration confirming a debt of $277,710.29 owed to her attorney, whose firm had borrowed considerable sums to cover the shortfall. The court ultimately awarded $188,911.49, reducing the claimed amount by deducting expert and guardian ad litem fees, applying sanctions imposed on the husband, and cutting expenses deemed excessive or duplicative. The central issue concerned the broad application of the 1999 decision, In re Marriage of Burke. In that precedent, the court held that a prenuptial agreement cannot prevent a parent from seeking attorney fees for disputes regarding custody plans. The husband in the present case argued that the decision applied only to those specific issues, but the court rejected this viewpoint. The majority explained that judges should have the discretion to award attorney fees in divorce cases involving parental plans and child support, even when fees relate to other aspects of the divorce. The Court of Appeals did not decide whether the specific amount awarded for attorney fees to the wife was correct. It remanded the case to the trial court for further analysis. On appeal, the court noted that the wife may recover reasonable fees, although the exact amount remains a factual matter for the trial judge. [1]
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