When a client is deciding whether to take a contested divorce case to court, the financial cost of litigation is often one of the most important considerations in making that decision. As we discuss the pros and cons of litigation, clients often ask me, “Will the court order my spouse to pay my fees?”
My answer is “It depends.” There are two very different areas to explore in answering this question: what does the law say, and what do courts do in actual practice?
The District of Columbia, Maryland and Virginia all have statutes that spell out the factors that judges must consider in deciding whether to award attorneys’ fees in a divorce case. These factors include the financial circumstances of each party and whether a party was “substantially justified” in bringing or defending against the court case.
But even where the party receives a favorable ruling from the court, that is, “wins” at trial, and is in much worse financial shape that the “losing” party, the reality is that trial courts rarely award even the most deserving party more than half of their attorneys’ fees in a divorce case. And quite often the award is much less than half, or even zero.
However, a different situation exists in post-divorce litigation cases if the divorce was resolved by a written settlement agreement, and the agreement has a provision for attorneys’ fees if a party breaches the agreement. In such circumstance, where the court finds that one party did in fact breach the terms of the agreement, the court must enforce the parties’ agreement and award attorneys’ fees to the non-breaching party.
Another specific situation requiring a judge to award attorneys’ fees involves inter-state custody cases where a court finds that a parent wrongfully removed a child from one state and took the child to another state, often seeking to have the case heard in the courts of a more favorable jurisdiction. The statute that controls these types of cases provides for a mandatory award of fees to the prevailing party. As a rule, inter-state custody cases are very expensive as they involve court systems in two or more different states so awards of fees in these cases can be very significant.
In deciding whether to litigate a divorce case, it is prudent to be conservative in assessing the likelihood of an award of attorneys’ fees, and to factor the fees in your overall cost-benefit analysis.