Requesting Attorney’s Fees and Costs From The Other Party
David L. Donnelly - Family Law Attorney
In most domestic relations cases, either one or both parties request their attorney’s fees and costs be paid by the other party, and in these uncertain economic times, this trend is even more prevalent. In general terms though, there are only a few circumstances where a Court will warrant that an award of attorney’s fees and costs is appropriate in domestic relations cases.
The first and most common, is when there is a large disparity of income between the parties. The operative word here is disparity. This does not mean that the Court will award fees just because there is a mere difference in incomes. The law requires that the disparity in income between the two parties is so great that it detrimentally affects one party’s ability to obtain an attorney while still meeting their reasonable needs, including payment of mortgage or rent, feeding their children and themselves, and other needs.The theory behind this is that oftentimes, there are situations where one party is a stay-at-home parent and the other party is the primary breadwinner because this relationship often affects the lesser income-earner’s relative ability to pay. To not award attorney’s fees and costs in this situation would unfairly affect one party’s ability to obtain attorney representation in the proceedings.
The next situation where an award of attorney’s fees and costs is appropriate is when the other party files frivolous motions, or motions designed to inflame the other party, or motions that have no foundation in the law. Such motions are most often used to obtain an advantage or to out-litigate the other party, but the Court is cognizant of these techniques and oftentimes, does award such fees to stop the offending party from continuing to use such tactics. Although there are other opportunities where your attorney can request that your attorney’s fees and costs be paid by the other party, they are used on a very specific case-by-case basis. One instance includes a situation where the other party is in violation of already existing Court orders. This is referred to as a contempt proceeding. Additionally, there are a few others situations as well, but these situations do not occur with great regularity in the domestic relations field. With that being said, it is essential that your attorney know of these circumstances and knows when to assert these arguments on your behalf. Bottom line, your attorney should identify these situations fairly early in your case and should keep you advised of these situations as your case proceeds forward.
