April 24, 2013

Can I Get Reimbursed for My Attorney Fees?

I am frequently asked this question by prospective clients during the initial consultation.    Some are surprised to discover that they can’t find an attorney that is willing to take on their case without paying a retainer in advance.    This is because an award of attorney fees from the court is never an absolute certainty.

Generally, attorney fees may not be awarded in a case unless authorized by statute or contract. Georgia law does have various statutes authorizing an award of attorney fees in family law cases.

In divorce cases, or in contempt cases arising out of divorce cases, O.C.G.A. §19-6-2(a) authorizes the court to grant an award of attorney fees. The statute states that the award of attorney fees is “within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties”. The Court is required to consider each Party’s financial circumstances, but the Court not precluded from considering other factors (ie. bad conduct).

In proceedings for modification of child support, O.C.G.A. §19-6-15(k)(5) states that the court may award attorney’s fees, costs and expenses of litigation to the prevailing party as the interests of justice may require. The Court must to determine which party is the “prevailing party” in a case concerning a modification of child support. The Court is then authorized to award attorney fees and litigation expenses to the prevailing party, but it is not required to do so.

In cases involving a modification of child custody, O.C.G.A. §19-9-3(g)provides that the judge may order “reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge”. This is in addition to the attorney fee provision set forth under O.C.G.A. §19-6-15. Whether or not attorney fees and expenses are awarded to either party lies within the sound discretion of the Court.

Finally, O.C.G.A. §19-15-14 authorizes an award of litigation costs and attorney’s fees for frivolous actions and defenses. Whether an action is “frivolous” is a matter of judicial interpretation applying the language of the statute to the facts of circumstances of the case.

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