ABC’s of Divorce: Attorney Fees

Some other lawyers, including myself, are blogging the alphabet on our practice areas. There would be one post for “A,” another for “B,” and so on. This is the first in the ABC’s of Divorce—A is for Attorney Fees. This isn’t about the cost of legal representation, per se, but this post is concerned with when the trial court may award attorney fees to a party in a divorce.

There are two broad conditions that justify the award of attorney fees. The first is when one party has the inability to pay. The other condition is based on the party’s conduct.

Inability to Pay

Under Mississippi law, a party to a divorce may be awarded attorney fees when they are unable to pay. But what exactly is an inability to pay?

That is determined based on the party’s assets, expenses, and income. Unfortunately there are no hard and fast rules. It seems, based on rulings of the Mississippi Supreme Court, that you need not dip into retirement accounts, and sometimes, you do not need to sell your assets. However, in other cases, the courts have held that a party must do so. What is clear is that the inability will be determined on a case by case basis.

The chancellor should justify his finding on the record—that is, in writing—and must consider what are known as the McKee factors:

A sum sufficient to secure a competent attorney;
The skill and standing of the attorney employed;
The nature of the case and novelty and difficulty of the questions at issue;
the degree of responsibility involved in the management of the cause;
the time and labor required;
the usual and customary charge in the community; and
the preclusion of other employment by the attorney due to the acceptance of the case.

Even if the judge finds there is an inability to pay, he must also consider the financial disparity, if any, between the parties. Finally, there must be some proof on the inability to pay.

Party’s Conduct

The conduct of a party may justify the award of attorney fees in the following situations:

Dilatory Tactics – when one party prolongs litigation and increased the other’s expenses by concealing assets or refusing to comply with discovery, an award may be appropriate.
Contempt Actions – This is the most common way fees are awarded and occurs when a party violates a court order.
Unfounded Allegations of Child Abuse or Domestic Violence. In my experience, many attorneys are not ware of this, and I haven’t seen that many requests for fees in those situations.

Reimbursement

Usually, the award of attorney fees is done as a reimbursement. You will have to pay your attorney, and then you get awarded the fees back by the court. In a few situations, an attorney may take the case with only the hope of getting fees at the end, but that runs a little to close to taking a contingency fee for a divorce—which is prohibited—for my taste.

Photo Credit: Stevendepolo