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:

1. A sum sufficient to secure a competent attorney;
2. The skill and standing of the attorney employed;
3. The nature of the case and novelty and difficulty of the questions at issue;
4. the degree of responsibility involved in the management of the cause;
5. the time and labor required;
6. the usual and customary charge in the community; and
7. 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

While I have not had time to read the opinion yet, I have read some summaries, and it has the potential to be a game-changer where one parent is suing another for failure to pay child support.

In a 5-4 decision, the high court found that Turner’s due process rights had been violated. Specifically, the court three problems:

• The trial court never told Turner that his ability to pay was the crucial question at the contempt hearing;
• Neither the trial court nor its employees provided Turner with a form for his financial declaration; and
• The trial court never even officially determined whether Turner had the ability to pay the child support he owed.

So, does this mean you have the right to counsel at a contempt hearing where jail time is a possibility? Not necessarily. The court’s opinion stated alternative methods could be used to ensure due process. I do not know if the opinion mentioned what those “alternative methods” could be.

This could have serious ramifications, especially in a poor state like Mississippi. Most counties in the state don’t have an established public defender’s office for criminal cases. If something like that has to be created for civil contempt hearings, where will the money come from?

Update:

Another summary I have read indicates that an attorney will not need to be appointed where four conditions are met:

(1)  notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;

(2)  the use of a form (or the equivalent) to elicit relevant financial information from him;

(3)  an opportunity at the hearing for him to respond to statements and questions about his financial status;

(4)  an express finding by the court that the defendant has the ability to pay

In almost all cases, if you resolve the contempt complaint by paying off an arrearage (or whatever was the basis for the allegation of contempt) then the court will take no action.

For the following examples, I’m going to use an arrearage of alimony as the basis for the contempt. This will streamline th examples a little bit.

If you are a month or two behind on your alimony, the judge will likely give you a reasonable amount of time to pay back the arrearage. You’ll also have to make the regular amount of the payment as you are paying the back alimony.

The worst case is if you are seriously behind. I’m talking tens of thousands of dollars. Unless you can come up with a major portion of that in a lump sum, you had better prepare for some jail time.

Let’s assume worst case scenario and you are locked up for contempt. How can you get out? Well, unfortunately, you can’t post bail. The “bail” for contempt is the arrearage.

The exact procedure is going to vary from court to court, but generally, in Mississippi, you can offer a significant portion of the amount you owe to the offended spouse in exchange for a recommendation to the judge to release you from jail. The judge, of course, is free to reject that recommendation.

If the offended spouse doesn’t accept that amount, some judges will consider it anyway, and some won’t.

What if you really don’t have the money and your friends and family can’t raise it? You’ll have to sit in jail until the judge is convinced that you can’t pay it. Again, this is going to vary depending on the judge as to how long you have to wait. There is no hard and fast rule.

What’s that? You thought you couldn’t be thrown in jail for unpaid debts? To my knowledge, no challenge on this basis has been successful when you are jailed for contempt. This is because the courts don’t view it as being jailed for a debt, but for disobeying a court order.

Image Credit: Jeremy Brooks

The Mississippi Court of Appeals recently elaborated on this subject. There are actually two types—civil and criminal. Civil contempt is when you are jailed until you comply with the court’s order.For example, when you hear about a reporter being jailed because he wouldn’t reveal his sources when a judge orders him to do so, that is civil contempt. It is said that the contemnor holds the keys to his jail cell because all that has to be done is comply with the order and you will be out of jail.

Criminal contempt is a little more complicated. There are actually two types, direct and constructive. Direct criminal contempt occurs when one, through one’s actions or words, insults or embarrasses the court.

Constructive criminal contempt occurs outside of court, and therefore, there are due process requirements that must be met. (For example, a hearing to show cause why the alleged contemnor should not be found in contempt). If you violate the court’s order regarding some aspect of your divorce, you are subject to being found in constructive criminal contempt.

With both types of criminal contempt, a judge may order you to serve time in jail as punishment for the contemptuous words or actions.

Bottom line—don’t get the judge upset.