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Leveling the playing field with Attorney Fees awards.

Tonight's post is a thorough examination of an oft asked question, "can I get my ex to pay for my attorney fees?"  Our Marietta Divorce Attorney, Jeannine Lowery answers that question.

Being a stay at home parent or homemaker is a rewarding endeavor that deserves recognition and praise. However, often in the context of lengthy and expensive litigation, access to money can mean limited access to justice. Fortunately, there are several statutes in Georgia that authorize attorney fees in domestic relations cases. Here's a brief summary, albeit not exhaustive, of the most useful tools in ensuring equal access to justice in family law cases.

Attorney Fees in Alimony and Divorce Cases

Pursuant to O.C.G.A. § 19-6-2(a) attorney fees are allowable in actions for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case. While attorney fees under this statute are in the sound discretion of the court, the court must consider the financial circumstances of both parties when determining if and how much should be awarded. The purpose of this statute is to ensure that both parties, but in particular the financially dependent spouse, can properly protect their interests and contest the issues in the case adequately. O.C.G.A. § 19-6-2 ensures effective representation of both spouses so that all issues can be fully and fairly resolved.

Attorney Fees for Child Support

Modification of Child Support

In modification of child support actions, O.C.G.A. §19-6-15(k)(5), allows the Court to award attorney fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require. What does that mean? That means that it is up to the Court whether to grant attorney fees and if you lose, you will likely not get attorney fees. However, the statute also states that in the event that a Custodial Parent prevails in an upward modification of child support based upon the Noncustodial Parent's failure to be available and willing to exercise court ordered visitation, reasonable and necessary attorney's fees and expenses of litigation shall be awarded - meaning the Court has to award attorney fees and expenses.

Establishment or Enforcement of Child Support under UFISA

The Uniform Interstate Family Support Act, or UFISA, allows for attorney fees when a party attempting to establish or enforce child support prevails. O.C.G.A. § 19-11-132. The Court can even assess filing fees, other costs, and necessary travel and other reasonable expenses incurred by the party who establishes or enforces the child support order. However, the Court may not assess fees, costs, or expenses against the party attempting to establish or enforce child support, except as provided by other law.

Attorney Fees in Child Custody Cases

In child custody cases, the Court 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. The Court has the authority to decide when and how such payments will be proportioned pursuant to O.C.G.A. § 19-9-3(g). Attorney fees may be awarded at both the temporary hearing and the final hearing in child custody cases. This statute can level the playing field and allow both parties an opportunity at custody. It also allows the Judge to appoint a guardian ad item to investigate what is in the best interest of the children.

Attorney Fees for Modification of Alimony

Under O. C. G. A. § 19-6-19 (d), the prevailing party in a modification of alimony case can recover attorney fees, costs, and expenses of litigation "as the interests of justice may require." again, you have to "prevail" or win to recover attorney fees. A person forced to defend a modification of alimony brought by the party obligated to pay alimony can recover the reasonable costs of defense under O. C.G. A. § 19-6-22. This statute protects the party receiving alimony by allowing the Court to force the obligated spouse to pay to defend the downward modification.

Attorney Fees in other Domestic Actions

•· Under the Uniform Child Custody Jurisdiction and Enforcement Act., O. C.G.A. § 19-9-92, the Court shall award the prevailing party necessary and reasonable expenses including, costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings.

•· Under OCGA § 19-13-4 (a) (10), a Court is authorized to award attorney fees where family violence warranted the granting of a protective order.

Because this summary is by no means exclusive, it helps demonstrate that financial inequality is not a bar to justice. What's better than winning, is winning and making the other party pay for your attorney.

Jeannine Lowery

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