Going through a divorce – particularly a contested divorce – can require many hours on the part of your legal team. That, of course, translates to higher legal fees.

While many divorces today are no-fault cases in which both parties are responsible for their own legal bills, there are a few cases in which the court may require one spouse to pay the other party’s legal fees.

In this month’s article, we explore what Georgia law says about who pays the attorney fees in a divorce and answer some other questions about how the courts determine who pays.

Who Pays the Attorney Fees in a Divorce?

By default, each party to a divorce is responsible for paying their own legal fees. However, in certain circumstances, the court may charge one party with paying their spouses’ legal fees.

We will discuss some of the circumstances in which the court may award legal fees. In all cases, however, the award of legal fees can only be made if a party to the divorce requests it. If either party meets any of the criteria below, their lawyer can file a motion for legal fees. If the evidence or argument is strong enough, the court may order the other party to cover some or all of the petitioner’s legal expenses.

partial view of couple at table with divorce documents

In What Circumstances Can Legal Fees Be Awarded?

There are hundreds of potential reasons why the court might award legal fees to one spouse in a divorce, but most fall into two categories: dependency or need and bad faith.

Dependency or Need

Imagine a situation in which a couple is divorcing, but the husband has total control over the couple’s finances. If the divorce isn’t amicable, he could simply prevent his wife from obtaining effective legal counsel by cutting off her access to funds.

One of the cornerstones of the American legal system is that both parties in a dispute can secure legal representation. In cases like the above, when one spouse has full control over a couple’s money and is denying the other spouse access to marital assets, the courts will usually order the spouse controlling the funds to pay the other party’s legal fees.

When petitioning the court for legal fees on the basis of dependency or need, the court will examine both parties’ assets, debts, and earnings to determine who will pay the legal fees in the divorce.

Bad Faith on the Part of One Spouse

In some cases, the court may award legal fees to one spouse because the other has been acting in bad faith. If you’re involved in a divorce and the other party is causing you to incur extraneous, unnecessary legal costs, you can petition to have the court order them to pay those costs.

Examples of bad faith actions include:

  • Refusing to participate in lower-cost dispute resolution actions such as mediation.
  • Filing frivolous motions or countersuits to intentionally delay proceedings or burden the other spouse with additional legal bills.
  • Failure to respond to communications, forcing the other spouse to pay additional fees for things like process service.
  • Engaging in deceptive practices such as hiding assets and disobeying court orders.

If the court finds that one party is guilty of any of these acts, they will typically require the offender to pay their spouse’s legal fees.

How Does the Court Guarantee Payment of Legal Fees?

When one person is required by the courts to pay another person’s legal fees, that requirement carries the full weight of a court order. If the responsible party fails to pay as directed, they can be held in contempt of court and may suffer wage garnishment, fines, or even jail time until the payments have been made.

Courts generally require legal fees to be paid in one of two ways:

  • Fees can be awarded “in full,” which means the entire legal bill is paid at the end of the proceedings once the divorce is finalized.
  • Fees can also be awarded “on account,” which means that the responsible party must pay the opposing counsel every time the bill comes due.

Does the Same Hold True for Custody Cases?

The courts have a little more leeway in determining which parent will be responsible for legal fees in child support and child custody cases. In custody and support cases, such as modification actions, courts can award legal fees to one parent or the other on almost any basis.

Generally speaking, legal fees resulting from a custody or support modification act are most often awarded to the parent who files the initial petition for modification if the facts of the case support it.

Preparing to Go Through a Divorce? We Can Help: Call EMC Family Law Today!

You shouldn’t pay more than necessary. Our attorneys offer trusted, helpful legal guidance through every step of any divorce, no matter how contentious or complicated. Give us a call and let us guide you through your next steps: 770-225-7000

Related Articles: