Indybar: The American Rule in Marital Disputes: Attorney Fees May Not Be Recoverable in an Action to Annul a Void Marriage

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By Zach Stock, Indiana Public Defender Council

We all know the American Rule by heart: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Yes, but no. We’re referring to the other American Rule. The one that “requires the parties to pay their own attorney fees absent an agreement, statute or rule to the contrary.”

In most marital litigation, there is a statute to the contrary. Indiana Code § 31-15-10-1 allows a court overseeing a dissolution proceeding to order a party to pay “a reasonable amount” of the other party’s costs and attorney’s fees. This statute also applies to certain annulments. See Ind. Code § 31-11-10-4. Specifically, the law applies to an action to annul a voidable marriage.

You ask, “What about void marriages?” Suppose your client learns their “spouse” was secretly married in another state at the time of his marriage. Does he not get attorney fees in the annulment action? Probably not. First, a bigamous marriage is void as a matter of law. Ind. Code § 31-11-8-2. That is, the marriage is void whether you pursue an annulment action or not. See Ind. Code § 31-11-8-1. Second, a recent decision of the Court of Appeals of Indiana has made clear that the American Rule still prevails in an action to annul a void marriage.

In Estate of Estridge v. Taylor, 187 N.E.3d 275 (Ind. Ct. App. 2022), the petitioner alleged that a marriage was void due to mental incapacity. See Ind. Code § 31-11-8-4. This is one of the few void marriages that require an annulment action, see I.C. § 31-11-8-2, and the petitioner was unable to persuade the trial court to grant the annulment. The petitioner appealed, and the respondent cross-appealed. The respondent asked the court to reverse the trial court’s order denying her petition for attorney fees. The Court of Appeals affirmed in all aspects. Estate of Estridge, 187 N.E.3d at 282-283.

The court held, “[A]s no statutory provision allows [respondent] to request reasonable attorney’s fees following an action [to annul a void marriage, respondent] is not entitled to attorney’s fees.” Id. at 282. The court did not specifically mention the American Rule. Still, there can be no doubt that this was the assumption underlying the court’s decision. The holding was based entirely on the lack of a “statutory provision that allows a party to request reasonable attorney’s fees when bringing” an action to annul a marriage due to mental incapacity. Id. In other words, the American Rule prevails without a statute to the contrary, and the parties are bound to pay their own attorney fees.

Actions to annul void marriages are uncommon, but they exist. McPeek v. McCardle, 888 N.E.2d 171 (Ind. 2008); Matter of Estate of Moster, 158 N.E.3d 775, 781 (Ind. Ct. App. 2020), In re Estate of Holt, 870 N.E.2d 511, 514 (Ind. Ct. App. 2007), trans. denied. Precisely because they are uncommon, it would be natural for a litigator to approach the intake of such cases like a dissolution proceeding. The litigator might assume that the possibility of recovering attorney fees is on the table. As the court made clear in Estate of Estridge, this would be an unwarranted assumption.

With Independence Day having just passed, remind yourself of the American Rule. Even in marital litigation, without a statute to the contrary, your client will be responsible for his own attorney fees.•

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