Attorney's Fee Awards in a Georgia Divorce or Modification Action

Attorney's fee awards are generally considered a subset of alimony. Under O.C.G.A. section 19-6-2, at a temporary hearing, fees can be awarded based on disparity of income or cash reserves to allow either spouse to secure fair representation - an "even playing field". Per 19-6-2(a)(1), the court, in awarding either temporary or permanent attorney's fees, must consider the financial circumstances of both spouses.

Attorney's fees can be awarded at a temporary hearing or at a final trial. Attorney's fees can be awarded to allow a spouse who had limited cash to receive the resources from either the marital estate or from the opposing spouse to receive proper representation in the case. Georgia Divorce Lawyer Russell Hippe has asserted these positions. He has also defeated claims for attorney's fees at final trial. In one specific case, a prominent firm was requesting more than $100,000 in fees and the ultimate award was less than $10,000.

Also, if one spouse is unnecessarily driving up costs and expanding the litigation without cause, a court can award attorney fees based on statutes outside Title 19, O.C.G.A. section 9-15-14 for example. There are other specific statutes that allow for the award of attorney's fees in the domestic context. For example, in an action to modify child support, O.C.G.A. 19-6-15(k)(5) allows for the award of attorney's fees to the "prevailing party" as the interests of justice may require. In an action to modify custody, O.C.G.A. section 19-9-3(g) gives the trial court broad discretion to award fees in a custody modification action. Under O.C.G.A. section 19-9-3(g), the court does not have to consider financial circumstances or whether the moving party is the "prevailing party".

Relevant authority:

OCGA § 19–6–2 authorizes the trial court in a divorce action to exercise its sound discretion and, after considering the financial circumstances of the parties, to award attorney fees as necessary to ensure the effective representation of both parties. Mongerson v. Mongerson, 285 Ga. 554(7), 678 S.E.2d 891 (2009). The court must specify the code section that is the basis of the award. See,Leggette v. Leggette, 284 Ga. 432(2), 668 S.E.2d 251 (2008) (reversing award where motion sought fees pursuant to both OCGA §§ 19–6–2 and 9–15–14, and the award was made without findings of fact or specification of statutory basis).

Under OCGA § 9–15–14, a trial court may award attorney fees against any party who has acted to cause delay or harassment or who has unnecessarily expanded the litigation by improper conduct including discovery abuses.

Miller v. Miller, 288 Ga. 274, 281, 705 S.E.2d 839, 846 (2010).

Practice Pointers:

If you are an attorney seeking future fees in a temporary hearing, you should come to court with a written, reasonable approximation of costs and expenses (drafted in the form of a proposed order for the judge), including any special financial experts that may be necessary to assist in the case, or the costs of a guardian ad litem, if this involvement is warranted. If you are seeking the award of fees based on billing already charged to the client, make sure opposing counsel has seen the bill in advance of the attorney's fees hearing (all privileged / confidential content redacted of course) and has had an opportunity to review for the accuracy of the bill and the reasonableness of the time spent and the rate charged. All requests for attorney's fees should be both realistic and reasonable.