Attorneys Fees in a Georgia Divorce

[Jim]

Attorneys Fees in a Georgia Divorce under O.C.G.A. § 19-6-2
According to O.C.G.A. § 19-6-2, you can be awarded attorney’s fees in a divorce, but the award of attorney’s fees is ultimately decided by the judge assigned in your case. After the judge hears testimony from both you and your spouse, he or she will look at the facts of the case and base his or her decision on one factor – the financial circumstances of both parties in a divorce. O.C.G.A. § 19-6-2(a)(1). This is similar to the award of alimony in a divorce case because the judge will look at both parties’ incomes and decide on one party’s ability or inability to pay attorney’s fees and the other party’s need for attorney’s fees. Even though you may ask for attorney’s fees, there is no guarantee that the judge will actually grant attorney’s fees in your case.

If the judge awards attorney’s fees in your divorce, the judge will sign a Final Order showing the amount of attorney’s fees that your spouse is required to pay. One of the disadvantages about the judge awarding attorney’s fees in your case is that amount of attorney’s fees that the judge awards in his Final Order may or may not reflect the total amount of attorney’s fees that you incurred in your divorce according to § 19-6-2(a)(2). The judge could actually award an amount less than what you incurred.

When the judge is determining the amount of attorney’s fees, he or she may look at several factors. The judge may review the invoices from both you and your spouse’s attorneys and determine if the amount that you incurred is fair. When reviewing the invoices, the judge may look at the hourly rates of staff at your law firm, such as the attorney, associate attorney, and/or paralegal working on your case, as well as the charges that you incurred as compared to those hourly rates and charges that your spouse incurred from the opposing law firm. As we mentioned previously in this blog, it is difficult to determine whether someone will be awarded attorney’s fees since the award is based on the sole discretion of the judge and because each divorce case and each judge is different, it is difficult to determine whether he or she will award attorney’s fees in your particular divorce case.

The exact statutory authorization for attorney’s fees under the Official Code of Georgia is: O.C.G.A. § 19-6-2

[Jim]

TITLE 19. DOMESTIC RELATIONS
CHAPTER 6. ALIMONY AND CHILD SUPPORT
ARTICLE 1. GENERAL PROVISIONS

O.C.G.A. § 19-6-2 (2008)

§ 19-6-2. Attorney's fees; when granted; grant of final judgment; how enforced; action by attorney


(a) The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:

(1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; and

(2) A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.

(b) Nothing contained in this Code section shall be construed to mean that attorney's fees shall not be awarded at both the temporary hearing and the final hearing.

(c) An attorney may bring an action in his own name to enforce a grant of attorney's fees made to him pursuant to this Code section.

Also look in the GA Caselaw forum for more info.

[Jim]

Attorney Fees Award Must Consider Financial Circumstances of Both Parties: Anderson v Svard
In an appeal from the Superior Court of Cobb County, the Georgia Supreme Court has reversed an order requiring a husband to pay the wife's attorney's fees in the contempt action she brought alleging that he had failed to pay court-ordered child support and had encumbered property he was required to convey to the parties' minor son. The unanimous decision written by Justice Hugh P. Thompson in Anderson v. Svard, S07A0594, found the trial court abused its discretion because there was no evidence in the record with regard to the financial circumstances of the parties.

[Jim]

An Analysis of Georgia House Bill 369: Attorney's Fees

Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.

Subsection (g) of OCGA section 19-9-3 addresses the issue of attorney’s fees in custody cases. For many years in Georgia, attorney’s fees have not been available in cases dealing purely with custody matters. One party could seek a modification of custody and cause the other party to incur substantial attorney’s fees, with no recourse to recover the fees unless the court made a finding that the party had engaged in frivolous litigation.

HB 369 provides a long-needed correction of that situation by providing for an award of attorney’s fees in custody cases. It also provides a statutory basis for awards of expert witness fees, guardian ad litem fees and other expenses incurred in the case:

“Except as provided in Code Section 19-6-2, and in addition to the attorney´s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney´s fees and expenses of litigation, experts, and the child´s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney´s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney´s fees made pursuant to this subsection.”