For some spouses who have considered the prospect of divorce, obtaining a divorce is an almost unobtainable option because they lack the personal financial resources needed to complete the divorce process. Divorces are often costly endeavors. Additionally, many couples often begin to separate their bank accounts and other financial assets long before the divorce process is complete. This often leaves the stay at home parent or the spouse who has a more limited earning capacity wondering: My spouse controls our marital finances, how will I pay my attorney’s fees? Fortunately for some spouses facing this issue, Georgia law may provide some relief.
When a spouse files for divorce, he or she may request that the court enter a temporary order entitling them to temporary spousal support, child support and interim attorney fees. Temporary orders may also impose temporary visitation schedules, prevent the sale or transfer of marital funds and assets and require each spouse to disclosure their financial information. Thus, if you are involved in a divorce action or if you are contemplating seeking a divorce, but you fear that you may not be able to afford the total costs associated with the divorce process, your spouse may be ordered by the court to pay your attorney’s fees.
According to O.C.G.A. § 19-6-2: “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: 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 …” O.C.G.A. § 19-6-2 (a)(1).
The purpose of allowing attorney fees to be awarded to one party during the pendency of a divorce “is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.” Johnson v. Johnson, 260 Ga. 443 (1990)(citing Blanchet v. Blanchet, 251 Ga. 379, 380-81 (1983)). See also Brady v. Brady, 228 Ga. 617, 618 (1972)(holding that “the allowance for attorney's fees should be sufficient to insure to the [spouse] proper legal representation by a competent attorney…”).
Thus, when a court is considering one party’s application for attorney’s fees under the provision of Georgia law, the court will weigh the inability of the spouse seeking the award of fees to afford effective representation against the ability of the opposing spouse to provide the funds necessary to pay the applying spouse’s attorney’s fees. Georgia courts have wide discretion regarding whether to award attorney’s fees to spouses involved in divorce actions and may choose to deny a spouse’s application of attorney’s fees if a denial is warranted. If you are considering divorce, or if you have been served with a complaint for divorce and you would like to learn more about the possibility of being awarded attorney’s fees in your case, contact one of the family law professionals at Meriwether & Tharp to schedule a consultation.
By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC