Boyd, Fernambucq, & Dunn - Divorce and Family Law Firm

Will I Be Awarded An Attorney Fee?

Litigation can be costly....

Will I Be Awarded An Attorney Fee?

Any type of litigation can be costly.  Fees and costs associated with litigation involving custody issues, financial support obligations, and a division of personal and real property, which are often compounded by the loss of affection and the anger the litigants have for one another, can quickly skyrocket. At your initial consultation, your attorney should explain to you the financial expectations and requirements in order to secure representation, and you likely had to pay an initial retainer fee and the filing fee to file your complaint or petition with the court.  In addition, the issue of whether it would be appropriate to request and expect the court to order your spouse or former spouse to reimburse you for the fees and costs incurred should also be discussed.

The Trial Court’s Authority to Award Attorney Fees in Alabama Divorce or Post-Divorce Cases

The court has the authority and, more importantly, the discretion to award an attorney fee in divorce and modification proceedings and in legal separation and contempt actions, and it also has the authority and the discretion regarding the amount of the fee to be awarded.  Seldom will the court exercise its discretion and award interim attorney fees to a party, which are those the party can use to pay their attorney during the pendency of the case.  Likewise, there are numerous factual situations in which Alabama appellate courts have held that a court cannot award attorney fees. 

Factors the Trial Court Uses in Determining Whether to Award an Attorney Fee

Factors utilized by the court in determining whether to award an attorney fee include, but are not limited to, the relative conduct or fault of each party, each party’s financial ability to pay fees, the time required to prepare the case, and the services rendered by the attorney.  Similarly, once the trial court has determined that an attorney fee should be awarded, the court will utilize certain factors in determining the amount of the fee to be awarded.  Again, those factors include but are not limited to, the nature and complexity of the matter and issues litigated, the learning, skill, and labor necessary for the attorney to adequately represent the interests of his or her client, the time expended, the reasonableness of the fees incurred, the fee customarily charged in the locality for similar legal services, the measure of success achieved in the litigation, and the court’s own knowledge and experience as to the value of services performed. 

In situations in which the court exercises its discretion and awards an attorney fee, the amount awarded is limited to a “reasonable” attorney fee.  Importantly, the court does not have to award a fee if the party seeking the fee does not offer any proof of the value, time, and effort of the attorney.

How Your Conduct May Influence the Trial Court’s Decision Whether to Award an Attorney Fee

What is important for you to understand is that even when the court has the authority to award an attorney’s fee, courts frequently choose, in the exercise of their discretion, not to do so.  An example in which an attorney’s fee is unlikely to be awarded is a divorce case in which the relative incomes of the parties are similar, no spousal or child abuse is present, and no fault is attributed to either spouse as it pertains to the breakdown of the marriage, and no illegal or criminal activity is engaged in by either party.  In contrast, the trial court is much more likely to order one party to pay or contribute to the other’s fees or costs when there are contempt findings, gross misconduct on the part of one party, the financial disparity in the incomes and abilities of the parties, and/or blatant misuse by one party of court proceedings or the court’s time. 

Consultation with An Alabama Divorce and Family Law Attorney

At the time of your initial consultation with any of the lawyers at Boyd, Fernambucq & Dunn, P.C., be sure to discuss whether it is reasonable to expect the court to award you an attorney fee or, conversely, whether you should expect to be ordered to pay or contribute an amount towards the fees and costs incurred by the other party in your case.  In order to schedule an appointment for such a consultation, please contact the lawyer of your preference here.

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