Attorneys Fees in Divorce, Custody, and Child Support Cases

Clients nearly always ask me if they can recover their attorneys fees in their family law case.  My response is almost always a very tentative “maybe.”  The short answer is:
– Divorce:  Sometimes
– Custody:  Rarely
– Child Support:  Often

In a divorce proceeding, both parties are entitled to a reasonable sum from the marital estate (property and assets of the marriage) to pursue or defend their divorce proceeding.  The purpose of this rule is to promote equity between the parties.  On a temporary basis, the party with less income or fewer cash assets is typically awarded attorneys fees as needed to proceed with the divorce case.  This is usually accomplished at a temporary hearing on the divorce or by agreement of the parties.

In contrast to a divorce case where the parties are dividing up marital assets, there is no “marital estate” in a custody action.  Most likely, you are on your own regarding attorneys fees if you bring or defend a change of custody case.  Importantly, “winning” the case does not likely win your attorneys fees.  In Georgia, the general rule is that one can only get attorneys fees if there is a specific statute allowing fees.  Currently, there is no statute authorizing attorneys fees in custody modification actions.

Attorneys fees ARE authorized by statute in child support cases.  In a contempt proceeding, the party who proves the other is violating the court’s order for child support will likely receive a reasonable sum for attorneys fees.  The petitioner in a modification of child support proceeding may also be entitled to attorneys fees, depending on whether the modification is upward or downward.

As with most issues in family law, the best rule of thumb is “maybe.”