Fifty Shades of (Attorney’s) Fees

Often in family law matters, the answer is “yes, but sometimes no” or “no, but sometimes yes” which can lead clients down a path of confusion and frustration. This is one of the many reasons that we recommend consulting with an experienced family law attorney who can give you some better answers on all the shades of gray that may be present in your domestic matter. One common topic we regularly deal with in shades of gray in family law matters is the issue of attorney’s fees.

“Do I have to “win” my argument to get attorney’s fees?” “He started this when he filed his Complaint, shouldn’t he have to pay my attorney’s fees?” “But she cheated, she has to pay my attorney’s fees because it is all her fault!” These are some common questions and statements we often hear, and my response to all of these would be “not exactly, it depends.”

Depending on the claim or claims that are filed, attorney’s fees may or may not be an available remedy. For child custody, child support, and spousal support matters attorney’s fees may be available depending on the situation. The law generally provides that if you are acting in good faith and you do not have sufficient means to cover the costs of the lawsuit, then the Judge may be able to award you attorney’s fees. What the Judge considers “sufficient means” is very fact specific to each case and there is no one size fits all formula.

While some folks may be here looking for guidance on how to seek attorney’s fees from the opposing party, it is important to be aware of the scenarios that could lead to you being the one paying the opposing party’s attorney fees. For example, if you should be paying child support and the judge determines you have refused to provide adequate child support, you could be stuck paying for the opposing party’s attorney fees. Additionally, not following the Court’s Order can not only get you in a lot of trouble (see Rachel Hamrick’s blog titled “A Cautionary Tale about Unnecessary Time in Jail” for more reasons to follow the Court’s Orders), but it can be costly in attorney’s fees. If the opposing side has to bring you in front of the Judge to force you to pay your ongoing child support obligation that is already in an Order, your non-payment could end up costing you in attorney’s fees.

Sometimes attorney’s fees are off the table. Generally, attorney’s fees are not an available remedy in equitable distribution matters, except for very narrow exceptions. When your attorney is working on the property division portion of your domestic matter, it is very unlikely you’ll see the judge order your ex-spouse to pay those fees on your behalf save for those very few exceptions.

Even in matters where attorney’s fees are available, such as custody, child support, and spousal support matters, the amount of fees to be awarded, if any at all, are in the discretion of the judge. There is no magic formula. The judge will consider whether or not to award attorney’s fees and how much in fees to award, based on the specific facts in each case. If you’d like to learn more about where in the gray area of attorney’s fees your matter might fall, please call us at (704) 347-0110 to schedule a consultation with one of our family law attorneys.

- Kate Foody, Esquire

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