In most civil cases, each party is required to pay his or her own attorney’s fees. However, family law is one of the few areas of the law where there is a legal basis for one party to pay the other party’s legal fees. The basis for the payment of attorney’s fees is found in North Carolina Statutes.
Unfortunately, it is not as simple as the side with the higher income always pays or the person who doesn’t prevail in the litigation pays (loser pays). North Carolina has actually set up two different standards for the award of attorney’s fees in family law cases. The first deals with fees in actions for child custody and child support cases and the second deals with fees in alimony and post separation support cases.
Fees in Child Custody and Child Support Cases
In child custody matters, Section 50-13.6, North Carolina Statutes sets the standards for an award of attorney’s fees. In summary, that statute says that to receive attorney’s fees, a party must: 1) be acting in good faith, and 2) not have enough money to pay for the action. Once that standard has been met, the decision of whether to award attorney’s fees falls to the discretion of the court. The term “discretion of the court” basically means that the court can award attorney’s fees if it is so inclined to do so based on the facts and circumstances of a particular case. There are many cases where both of the above standards have been met, but the opposing party does not have enough assets or income to justify an award of attorney’s fees. Further, even if the party seeking fees is acting in good faith, if that party does not prevail, it is less likely that fees will be awarded.
The standard for an award of attorney’s fees in child support matters is the same as in child custody matters; however, the statute includes an additional provision when it comes to child support cases:
“Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding…”
So not only does the party receiving support have to act in good faith and not have enough money to pay for the action, the court must also find that the person being ordered to pay has refused to provide adequate support before or at the time of the action for support.
Attorney’s fees in Alimony and Post Separation Support Cases
The standard for an award of attorney’s fees in Alimony and Post Separation Support case is completely different than an award of attorney’s fees in a child support or child custody matter. In an alimony or post separation support case, the party seeking fees must show: 1) that he or she is a “dependent spouse” and, 2) that the other party is a supporting spouse, and, 3) that the party seeking attorney’s fees would be entitled to alimony or post separation support.
Dependent spouse means that the spouse “is actually substantially dependent [on the supporting spouse] for maintenance and support”. Supporting spouse is the person on whom the dependent spouse is dependent. The requirement that the dependent spouse be entitled to alimony is a much longer legal analysis, but in practice it means that you have to win, at least in part, your claim for alimony or post separation support to have a chance to be award attorney’s fees.
Again, even if you meet all of the above criteria, an award of attorney’s fees is still in the court’s discretion, meaning that the court may award fees if it feels such an award is justified based on the facts and circumstances of your case.
Additional Ways to Obtain Fees
In addition to the statutes discussed above, fees can also be obtained by agreement (and likewise barred by agreement). Fees can be awarded as sanctions if a party violates a court order or various provisions of the Rules of Civil Procedure (such as failing to produce discovery). On solely financial matters in a divorce, fees can be obtained via an offer of judgment, which is where one side proposes to settle a financial matter (not including child support) and if the party rejects that offer and fails to obtain a better result at trial, the party who rejected the offer can be responsible for the other party’s attorney’s fees.
Generally these methods of obtaining fees are only used to obtain fees related to one particular issue, such as if your attorney had to do extra work to get the other side to comply with discovery requests. Thus the fees collected in such cases are usually small compared to the overall cost of the case. Accordingly, the primary method for getting attorney’s fees is thought the methods laid out in statute that apply specifically to family law.
Pursuing Attorney’s Fees
If you need your spouse to pay some or all of your attorney’s fees in your family law case, it is important to discuss that with your attorney at your initial meeting. Very few attorney’s will take a case solely on the chance the may get attorney’s fees from the other party, so most clients will have to have enough money to at least initially retain an attorney who can then seek fees.
Our attorneys are sensitive to your financial situation and we try to pursue your goals in the most cost effective way possible. As part of our representation, we can aggressively pursue fees when justified under the law. To see if fees can be pursued in your case, speak to one of our family law attorneys.