We get lots of questions about attorneys fees for Georgia divorce cases. Under what circumstances might attorneys fees be paid by a spouse as part of a Georgia divorce case? Of course, the parties can agree as part of their settlement on who should pay the attorneys fees. Sometimes, there is no settlement agreement reached and the judge must decide all of the issues. Sometimes, the parties agree on everything else but “reserve” the issue of attorneys fees for the judge to decide.
Fee award is in the judge’s discretion
Whether to award attorneys fees, and the amount, is in the judge’s discretion. The judge must consider the financial circumstances of both parties. Under Georgia law, attorneys fees in a divorce case are considered to be temporary alimony. The judge may order payment of a certain amount of attorneys fees at a temporary hearing, and perhaps additional attorneys fees at the end of the case. The judge may require a spouse to pay attorneys fees even if alimony is ultimately not awarded in the case. The judge will make “findings of fact” explaining the amount of the judge’s award of attorneys fees and will identify the statutory basis for the attorneys fees awarded. In Georgia divorce cases, attorneys fees are most often awarded under O.C.G.A. § 19-6-2. But other Georgia code sections also authorize attorney fees awards in family law cases - such as when one side is acting in bad faith, or is subbornly litigious. Attorneys fees can also be awarded in separate maintenance cases, paternity suits, child custody , and contempt of court proceedings.
Pay attention to the fees you are incurring!
It is important to remember that the full amount of attorneys fees requested may not awarded by the judge, even if the judge awards some fees. The party who incurred the fees will be liable to pay his or her attorney whether or not the judge orders the other side to pay. As a result, it is important to be aware of the attorneys fees being incurred in your Georgia divorce case.
Purpose of attorney fee award
The purpose of the award of attorneys fees is to enable the receiving spouse to contest all of the issues raised in the divorce or separate maintenance case. The amount is within the judge’s discretion, and the judge must consider the financial circumstances of both parties. The judge will look at what legal services are necessary for the case and what is reasonable compensation for the legal services performed. The application for attorneys fees must be made prior to the final decree of divorce.
When are attorneys fees not available?
In the event of adultery of one spouse that has not be “condoned” (forgiven) by the other spouse, the party committing adultery would not be entitled to attorneys fees because they are considered temporary alimony. However, the judge would have discretion to award attorneys fees if the adultery issue is contested.
If one spouse willfully abandons the other spouse, he or she will forfeit termporary alimony (and thus attorneys fees for the divorce). As with adultery, however, if the issue of abandonment is contested, the judge could award attorneys fees after considering the financial circumstances of both parties. The issue of abandonment might be contested if one party says the separation was the result of the cruel treatment of the other.
If attorneys fees are awarded by the judge, they can be collected by attachment, contempt of court, or a writ of fieri facias.
A word to the wise
The cost of your representation is an important issue in your divorce case. Money that you and your spouse spend on attorneys fees for your Georgia divorce is forever gone. It will not be available for your support, your children’s college education, or your retirement. The direction your divorce case takes will depend largely on decisions made by yourself and your spouse. The attorneys of Hindson & Melton LLC utilize uncontested divorces, collaborative approaches, mediation, or other strategies designed to achieve mutually acceptable settlements at a reasonable cost whenever possible.
© Karen S. Hindson, Hindson & Melton LLC, January 19, 2013