Appeals Court Expands Fee Awards in Divorce

A Washington appeals ruling lets trial judges award attorney fees to a poorer spouse despite a prenuptial fee waiver.

Updated on Nov. 5, 2026 in Divorce

Appeals Court Expands Fee Awards in Divorce

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Should a wealthier spouse pay a poorer spouse's divorce legal fees despite a prenup?

The Washington Court of Appeals, Division Three, ruled on October 29 that trial courts may award reasonable attorney fees beyond parenting and child-support matters even when a prenuptial agreement requires each spouse to pay their own fees. The court sent the wife's specific fee award back to the trial court for further consideration.

Why it matters

The decision means a wealthier spouse cannot necessarily outlast a poorer one by prolonging disputes until the lower-earning spouse can no longer afford counsel. For Washington residents with prenuptial agreements, fee-waiver clauses may not fully bar a court from ordering one spouse to cover the other's legal costs.

The prenup was signed in 2018 when the husband's net worth exceeded $15 million and the wife's was about $175,000. The trial court's $35,000 initial award was set against $131,229.05 in fees the wife had already incurred, and the final amount on remand remains undetermined.

The players

Washington Court of Appeals, Division Three

The state intermediate appellate court whose published opinion broadened trial courts' discretion to award attorney fees despite prenuptial fee waivers.

The details

The couple signed an antenuptial agreement in 2018 requiring each spouse to pay their own attorney fees in any dissolution or maintenance case, then married in July 2019 and had a child. The wife left the marriage in July 2022 and obtained a domestic violence protection order, and the court found the husband in contempt four times and intransigent three times during the litigation.

2018: Couple signs the antenuptial agreement with the fee-waiver clause.
July 2019: The couple marries.
July 2022: The wife leaves the marriage and obtains a protection order.
April 2023: The wife first requests attorney fees.
October 29: The appeals court files its ruling.

Legal Context

The ruling interprets Washington's dissolution fee-award statutes to reach beyond parenting and child-support matters, even against a prenuptial fee-waiver clause. It addresses the risk that a wealthier spouse could prolong litigation until a poorer spouse can no longer afford counsel.

Couples in Washington who have prenuptial agreements with fee-waiver clauses should understand that courts may still order fee payments, which can affect how they plan for a potential divorce. Spouses with fewer financial resources may find it easier to request help covering legal costs, though outcomes depend on individual trial court decisions.

The takeaway

A prenuptial fee-waiver clause does not automatically prevent a Washington court from ordering one spouse to cover the other's attorney fees. Anyone reviewing a prenup should consider how such clauses might be interpreted if a divorce turns contentious.