Most people in family law cases want to achieve their goals, and they want the other side to pay their attorney fees – all of their fees. You may or may not want to hear that the general rule in America is that each side pays their own attorney fees. This is true in all civil cases, not just family law cases. In fact, the general rule is so well known, that in legal circles it is called the “American rule”. But all hope is not lost.
The law allows the court to deviate from the “American rule” but only where a specific statute (a written law on the books) allows for reimbursement or award of attorney fees from the other side.
In family law cases in Georgia there are specific laws that allow for attorney fees in the following scenarios:
- Attorney fees in Divorce and Separation cases
- Attorney fees in Child Support Modification
- Attorney fees in Child Custody Modification
- Attorney fees in Alimony Modification
- Attorney fees and Unreasonable Conduct
- Attorney fees by Contract
- Attorney fees in Protective Orders
Attorney Fees in Divorce and Legal Separation Cases
In Georgia, a law found in Official Code of Georgia (O.C.G.A.) §19-6-2 allows the judge to award attorney fees in divorce and legal separation cases. This is the most commonly used law to successfully obtain attorney fees in divorce and separation cases in Georgia. Like all other laws allowing attorney fees in domestic cases in Georgia, only the judge can award fees.
O.C.G.A. §19-6-2 gives the judge discretion to award attorney fees while the case is pending and also at the end of the case. This law considers these fees as a form of temporary alimony paid from the party with financial means to the other party. This law operates – in a sense – to “level the playing field” by making funds available for both sides to find legal representation. Otherwise, the spouse with money could “starve” the other – preventing a spouse without access to money from hiring an attorney.
However, with this purpose in mind, O.C.G.A. §19-6-2 also requires the judge to consider the financial circumstances of the parties before making the award. This means both sides must present evidence of their “financial circumstances” (i.e. earnings, exenses and available financial assets). The Georgia Supreme Court has interpreted “financial circumstances” of the parties rather broadly. In one case, it found that historical evidence that one party received ample money every year from his mother as part of the “financial circumstances” before deciding whether he should have to pay his wife’s attorney fees.
Unlike some other laws allowing attorney fees in response to a party’s bad behavior in the divorce, the judge is not supposed to consider either party’s bad conduct under O.C.G.A. §19-6-2 – just their financial circumstances. In several cases, the Georgia Supreme Court has chastised judges who have denied fees under O.C.G.A. §19-6-2 on the basis of the requestor’s bad behavior or who have awarded fees under O.C.G.A. §19-6-2 saying that bad behavior was the reason.
However, this also means that the financially disadvantaged party normally has to ask the judge for a hearing to come to court well before the final trial (so called “interim” attorney fees) and specifically to invoke O.C.G.A. §19-6-2 and ask for fees. Unfortunately, the law also allows judges discretion not only to refuse “interim” attorney fee awards, but also to refuse to have the interim hearings in the first place. Sadly, crowded court dockets and unsympathetic judges often contribute to an unlevel playing field despite the specific design of O.C.G.A. 19-6-2 to prevent this.
It is important to recognize that if you control the money in the marriage, sooner or later you should accept that you may have to fund your spouse’s legal fees. Likewise, if you do not control the money, O.C.G.A. §19-6-2 allows you a ray of hope.
Attorney fees in Child Support Modification
In Georgia, a law found in Official Code of Georgia (O.C.G.A.) §19-6-15 allows the judge to award attorney fees in cases where child support is modified. This happens in cases where one parent – for good cause – wants to increase or decrease child support previously established. It also can happen where one of the parties wants custody to change, and child support ends up changing as a result. Like all other laws allowing attorney fees in domestic cases in Georgia, only the judge can award fees.
O.C.G.A. §19-6-15 – like all other laws regarding attorney fees – requires the judge to specifically say that attorney fees are being paid under this basis. It allows the judge discretion to award attorney fees to the parent who prevailed in the modification. But, O.C.G.A. §19-6-15 mandates that the judge must award attorney fees in one particular type of modification of child support – that happens in cases where a parent seeks and wins an upward child support modification because the non-custodial parent fails to exercise court ordered visitation.
Attorney fees in Child Custody Modification
In Georgia, a law found in Official Code of Georgia (O.C.G.A.) §19-9-3 allows the judge to award attorney fees in cases where child custody is modified. Like all other laws allowing attorney fees in domestic cases in Georgia, only the judge can award fees. Unlike some other laws allowing attorneys fees to be awarded, O.C.G.A. §19-9-3 does not require the judge to find a parent “at fault” for bad behavior or obnoxious conduct. O.C.G.A. §19-9-3 also does not require the judge to find one parent or the other the prevailing (i.e. winning) party, nor does it require any consideration of the parent’s financial considerations.
Therefore, it would appear that O.C.G.A. §19-9-3 gives the judge an enormous amount of discretion in child custody modification cases to award attorney fees in amounts the judge believes are appropriate. In fact, in 2018, the Georgia Court of Appeals made it clear that a judge could use O.C.G.A. §19-9-3 to award attorney fees in legitimation cases, whether a legitimation is granted or not. In the same case, the Court of Appeals also emphasized that O.C.G.A. §19-9-3 even allows expenses related to the case – like fees for a guardian ad litem – and allows them even if these expenses are incurred prior to the beginning of the case.
Attorney fees in Alimony Modification
Like all other laws allowing attorney fees in Georgia, only the judge can award fees. In Georgia, a law found in Official Code of Georgia (O.C.G.A.) §19-6-19 allows the judge to award attorney fees in cases where a court order awarding alimony is later modified. The judge is allowed (but not required) to award attorney fees and other litigation expenses to “the prevailing party as the interests of justice may require”.
There must be some evidence that a party “prevailed” or won in a modification. Winning does not necessarily mean winning everything you want. For example, a person may seek to increase alimony by $1,000 and only receive an increase of $500 and still be the “prevailing party”. However, if you seek to terminate or reduce your alimony payments, and the judge (or the jury) reduces your alimony only partially, say by $250, that is still prevailing.
Please beware though, this Georgia law also says if you pay alimony and try to terminate or reduce alimony on the basis that your former spouse is living with someone in a “meretricious” relationship (i.e. a continuous and open relationship that looks like a marriage done for cost sharing or sexual reasons), and if you fail (i.e. the judge or jury does not reduce it at all) then you must pay attorney fees.
A second law in Georgia, O.C.G.A. §19-6-22, allows attorney fees in alimony modifications. It says where an alimony payer seeks to modify an alimony award (either by filing a petition to modify or by responding to a petition to increase alimony by the recipient), the court may award the alimony recipient reasonable litigations expenses. This law does not require either party to “prevail” and allows the court to exercise its discretion in awarding attorney fees.
Attorney fees and Unreasonable Conduct
In Georgia, a law found in Official Code of Georgia (O.C.G.A.) §9-15-14 allows the judge to award attorney fees and litigation expenses in two scenarios where the other party’s boorish or obnoxious conduct crosses the line. Like all other laws allowing attorney fees in domestic cases in Georgia, only the judge can award fees.
First, O.C.G.A. §9-15-14(a) allows the court to award attorney fees and litigation expenses in severe cases where a party brings forth an action in which there is “a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position”. If one side seeks attorney fees under this law, the court must examine whether there is any evidence that could support a legal claim being called frivolous. If there is any evidence supporting the legal claim, the request for attorney fees under this law should fail.
Second, O.C.G.A. §9-15-14(b) also allows the court to award attorney fees and litigation expenses in cases which are sometimes considered abusive but less severe than those contemplated under O.C.G.A. §9-15-14(a). This law allows the judge discretion to award attorney fees and litigation expenses when the judge finds any evidence of a frivolous or groundless legal claim as well as conduct during the litigation that was designed to delay or harass the other party or actions that unnecessarily expanded the litigation.
Sadly, it is not uncommon for one party to make arguments or commit acts in the midst of a case that would motivate a judge to shift attorney fees and litigation expenses. Domestic cases are often highly emotional matters where the parties release pent up frustrations often pent up for many years. Worse, many attorneys “drink their client’s Koolaid” and buying into petty, boorish behavior. In the worst cases, some attorneys will create delay or needlessly cause the other side to incur attorney fees for no good reason. Such was the case in Carson v. Carson, a DeKalb County divorce case from 2003. The Georgia Supreme Court agreed that the judge’s order for the husband to pay the wife $55,782 in attorney fees for failing to provide necessary financial documents, filing frivolous motions and for filing to respond to his wife’s settlement offers.
We are happy to discuss recovery of attorney fees based on the bad conduct.
Attorney Fees by Contract
In addition to the handful of laws that allow the judge to deviate from the American rule and award attorney fees in domestic cases, the parties also have some control. Parties in a divorce or other domestic law case can settle their disputes. In their settlement agreements, they can make provisions for attorney fee awards in future legal actions.
One example is where the parties agree that if either of them is found – in the future – to be in contempt for violation of the terms, the party in contempt must repay the other his attorney fees. That is exactly what happened in a Gwinnett County case in 2010. When the trial judge felt that it was solely within his discretion – and not within the parties’ control – to agree on a future attorney fees award, the Georgia Supreme Court had to remind him otherwise.
Another example is where parties agreed that in any future modification – if the moving party loses – the loser pays the other’s attorney fees. That happened in 2017 in Merrill v. Lee, where the Georgia Supreme Court reminded a Fulton County judge that he was required to enforce a settlement agreement requiring a party to reimburse his ex-wife for nearly $50,000 in attorney fees!
Though there are currently no cases on record where the parties to a settlement have agreed to bar any award of attorney fees in future litigation, the rationale is supported by the law. The closest rationale is found in cases where pre nuptial agreements bar any award of alimony. In those cases, no award of attorney fees under O.C.G.A. §19-6-2 is allowed since attorney fees under O.C.G.A. §19-6-2 are considered a form of alimony.
These cases are cautionary tales to be wary of making agreements which obligate you to repay attorney fees based upon the outcome of future case. If you have questions about making agreements regarding attorney fees awards through pre nuptial agreements or divorce settlements, we would be happy to speak with you.
Attorney fees in Protective Orders
In Georgia, a law found in Official Code of Georgia (O.C.G.A.) §9-13-4 allows the judge to award attorney fees and litigation expenses in hearings regarding domestic violence and applications for Temporary Protective Orders (TPO). Like all other laws allowing attorney fees in domestic cases in Georgia, only the judge can award fees.
We are happy to discuss recovery of attorney fees in Temporary Protective Orders with you.