Recouping Litigation Costs in Family Law Matters

When faced with divorce, child custody or another family law dispute, your focus should be on achieving your legal goals and moving forward, building the future you want after your case is resolved. Unfortunately, for many people, the cost of legal fees involved in reaching those goals is of paramount concern. Accordingly, clients frequently ask us, “Can I be awarded attorney fees in my divorce?”

It is an understandable question, particularly for individuals who did not want to be involved in a legal dispute or who filed for divorce only after they felt that a spouse seriously wronged them. They may feel that the person responsible for the litigation should be the one to bear the costs. The answer to the question of whether a spouse can be forced to pay attorney fees in a divorce is a complicated one.

The law in both Maryland and the District of Columbia does state that attorney fees may be awarded to a spouse in a divorce, or other family law action, under certain limited circumstances. However, what is permissible under the law, and what happens in practice, are often two very different things. Generally, the law provides the following: In actions filed for a divorce, child custody, visitation or child support, either party may seek a contribution to his or her attorney’s fees as a result of the litigation. To obtain such fees, the party requesting must prove a need for the award that the other party has the ability to pay, and also the existence of a substantial justification for bringing or defending the action. In other words, not only must you have the need for a contribution to the cost of your attorney’s fees, but the opposing party must also have the ability to pay the attorney’s fees. And not only must your financial circumstances merit an award, but the justification for your actions and positions taken in the litigation must also merit an award.

Moreover, while obtaining an award of attorney’s fees in divorce and custody matters is certainly achievable, a judge has broad discretion in determining whether and how much to grant a party an award of his or her attorney’s fees. The most common cases in which attorney’s fees are awarded are those in which there is a large disparity in income.

At Strickler, Platnick & Hatfield, we strive to give our clients realistic expectations about awards of attorney fees and to ensure that they receive excellent value for those fees, no matter who is paying them.

What the Law Says About Awards of Attorney Fees in Divorce

As a general rule, parties to civil litigation, such as divorce, are expected to bear their own legal fees. In the interest of fairness, both Maryland and the District of Columbia have enacted laws that provide for one spouse to pay “suit money” to the other to enable them to “carry on or defend” the litigation. Suit money includes such expenses as counsel fees, expert witness fees, private investigator costs, vocational rehabilitation counselors, deposition costs, travel expenses, investigation expenses and court costs where such expenses are "reasonable and necessary.” Prospective attorney fees are also included in “suit money.” They may be awarded pendente lite (during the litigation), or on the merits at the conclusion of the case.

Laws authorizing the award of attorney fees are designed to protect a spouse with relatively few resources from being forced into an unfair settlement because they cannot afford litigation. Otherwise, a spouse with more assets could simply refuse to negotiate reasonably, knowing that they could put unbearable financial pressure on the other side by continuing to litigate.

Generally, and in order for a court to award attorney fees under these statutes, the person asking for their spouse to pay the attorney fees must be able to show that without the award of attorney fees, they would not be able to afford to litigate or that they already had endured great economic burden in doing so. Courts typically will not award attorney fees simply because the parties have unequal resources, so long as they can both afford to “conduct the case.”

While courts prefer to focus on the issue of economic need when deciding whether to award attorney fees, there are times that the court will consider fault or other egregious behavior—the courts often refer to this exception as “bad faith.” Under this exception, a party who has acted so egregiously in connection with litigation that the other party was forced to pay significantly higher attorney fees can be required to pay the other party’s attorney fees if the court finds the offending party acted in bad faith or lacked substantial justification to litigate.

Unlike most issues surrounding divorce, the bad faith exception is intended to punish a party who acts wantonly so as to discourage others from doing so. However, the level of misbehavior required to justify an award of attorney fees for bad faith is high; it is unwise to count on a spouse being forced to pay attorney fees under this exception.

In short, it is certainly possible for a Maryland or District of Columbia court to award attorney fees in a divorce, custody, or child support case. However, even if attorney fees are awarded, the award may be less than the amount requested. If you are concerned about paying attorney fees in your divorce, custody, or child support case, it is even more important to have the best possible representation that can help you try to control costs and suggest creative funding strategies.

Help with Attorney Fees in D.C. and Maryland Divorce Matters

If you expect to be awarded attorney fees in your divorce custody or child support matter, you need to work with attorneys whose ability to strategize can overcome the courts’ general disinclination to award fees. Achieving an award of fees is something like threading a needle: you must provide the court with the precise information it needs, at just the right time, to justify making the award. The attorneys of Strickler, Platnick, & Hatfield are known for their tactical approach to difficult issues in divorce and custody litigation, including awards of attorney fees.

Regardless of whether we expect to help our clients seek an award of attorney fees, we are committed to providing our clients with efficient service designed to achieve their goals in divorce and custody litigation. Our experience in both litigation and alternative dispute resolution methods enables us to achieve our clients’ aims in a cost-effective fashion without sacrificing quality of representation.

To learn more about the award of attorney fees in divorce, and how we work to provide exceptional results at an excellent value, contact Strickler, Platnick & Hatfield to schedule a consultation.