It’s no secret that divorce litigation can be expensive. With that in mind, it’s not surprising that one of the top questions that is asked in a consultation is whether the court can make the other party pay your attorney fees. The answer to that question is: maybe. Whether the court can shift attorney fees to the other party depends in part on what type of claims are being made and in part on the financial situations of the parties and there are different rules for different types of claims. Generally, courts in North Carolina follow the rule that each litigant bears the cost of his or her own legal representation, but there are exceptions to this rule. For there to be an exception, there generally has to be a specific statute that authorizes the trial court to shift fees. We do have several of these statutes in family law cases.
There is an attorney fee statute related to child custody claims. To be entitled to an award of attorney fees in custody, you must allege and prove that you are an interested party in the case, that you are acting in good faith in pursuit or defense of the claim, and that you have insufficient means to defray the costs of the action. Usually, a court can find that you have insufficient means to defray the cost of the action if your expenses exceed your income or if the only way you can afford to pay an attorney is to borrow money. Noticeably, there is no requirement that you “win” your case to be entitled to an award of fees. The analysis for an award of attorney fees in a child support case is similar to the analysis in a custody case in that the trial court must find that you are an interested party, who is acting in good faith, and that you have insufficient means to defray the cost of the action. Additionally, if your action is for child support only – and is not a combined action for child support and child custody – then the trial court must also find that the party who is ordered to pay support was not providing an amount of support that was reasonable under the circumstances that existed as of the time the action was filed.
For an alimony case, a spouse may be awarded attorney fees once the court finds that he or she is entitled to an award of alimony and that he or she is an interested party, acting in good faith, who has insufficient means to defray the costs of the action. Unlike the situation in a custody case where either party may get an award of attorney fees regardless of whether they “win” the case or not, before you may be awarded attorney fees in an alimony case, you must “win” your case by proving to the trial court that you are entitled to an award of alimony.
In an equitable distribution (property division) case, there are very limited situations in which the court may award fees. Specifically, the court may award attorney fees to you if the other party causes unnecessary delay in the proceedings or if you have separate property that is in the possession of the other party, and you have to bring that other party to court in order to get your separate property returned to you. For the majority of the fees incurred in an equitable distribution case, however, each party will be responsible for paying his or her own attorney.
Finally, you may be able to be reimbursed for your attorney fees if you are dealing with a separation agreement. For the initial drafting and execution of the agreement, each party will pay his or her own attorney unless there is an agreement to do otherwise. Some parties will agree that one party will pay some or all of the other party’s expenses associated with preparation and execution of the agreement, but most of the time, each party will pay his or her own attorney. Most agreements do include a provision regarding payment of attorney fees if litigation is later required to enforce the terms of the contract. The usual provision in these agreements is along the lines of permission to the court to award fees to the prevailing party in an action to enforce the contract.
