November 29, 2013

Attorney's Fees as Penalty

In Georgia, a party’s behavior in a case may result in that party paying his/her opponent’s attorneys fees as a penalty. Specifically, Georgia law states that “reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” OCGA §9-15-14(a) (emphasis added). Further, attorney’s fees may be assessed upon a party if the court finds “that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures…” OCGA §9-15-14(b). This penalty can be imposed regardless of the financial circumstances of either party.

Two Atlanta women recently found themselves on the losing end of this statute after filing paternity actions against Michel Jordan. Woman ordered to pay Jordan’s legal fees in paternity case, by Alexis Stevens, ajc.com, November 18, 2013. In each case, the women sought to establish Jordan’s paternity of their children. However, in each case, other men had already been established to be the father by DNA evidence. The court found these actions to be frivolous and, thus, each woman was ordered to pay Jordan’s attorney’s fees in defending the respective actions.

Though the financial circumstances of these women are unknown, it is likely safe to assume that Michael Jordan has greater assets and income. This shows that the law providing attorney’s fees as a penalty for frivolous actions does not look at one’s ability to pay the fees but, rather, uses them as a penalty for actions in relation to the case.

November 15, 2013

How much will it cost if I hire an attorney to represent me in my Georgia divorce?

When a prospective client meets with a divorce attorney for the first time, one of the primary questions on his/her mind is: How much is this going to cost me? The truth is, unless you and your spouse have already agreed on every issue and you just need the attorney to help you draft documents and finalize the divorce, it is extremely difficult to estimate cost with any degree of accuracy. Even one outstanding issue can cause the cost of a divorce to escalate.

The cost of representation in your divorce action depends on many things, including how many contested issues remain, the amount of discovery needed, whether both parties are forthcoming with answers to discovery, and the current feelings of the parties toward one another. This last issue may be the one that drives up the cost of divorce the most. The parties have obviously decided that they no longer want to remain married, but sometimes they are able act cordial to each other. If their negative feelings are so strong that they cannot be civil to each other, this may result in a party using the divorce process as a weapon, which often results in more paperwork, more hearings and, in turn, more attorney’s fees for both parties.

If you are concerned about the potential cost of your divorce, stay in close contact with your attorney (or his/her support staff) to make sure you know the status of any retainer and fees owed. Also, keep in mind that attorneys and their staff bill by the hour, and must bill you for any time spent on your case including phone calls, emails, etc. An attorney’s hourly rate is likely much higher than that of the support staff, so you may be able to keep costs down by communicating with support staff about minor questions regarding the status of your case, though it is important to remember that will be unable to give you any legal advice about your case.

November 11, 2013

Can I be forced to pay my spouse's attorney's fees if I don't make enough money?

In Georgia, attorney’s fees may be granted in a number of family law cases: alimony, divorce and alimony, or contempt of court arising out of the above cases. OCGA §19-6-2(a). While your spouse may threaten to make you pay his/her attorney’s fees in your divorce action, it is certainly not an automatic order in these family law cases.

The grant of attorney’s fees in the above-mentioned family law cases is in the court’s discretion, and the court is specifically required to “consider the financial circumstances of both parties as part of its determination of the amount of attorney’s fees, if any, to be allowed against either party.” OCGA §19-6-2(a)(1). This means that the court will look at each party’s financial situation, including income, debts, and assets, in deciding whether to award attorney’s fees. Consider a divorce situation where the husband was the sole breadwinner in the family, but wants to get back at the wife (who has no income or separate assets) for having an affair. Though the wife’s actions were certainly not appropriate for a marital relationship, she likely will not be ordered to pay his attorney’s fees because she simply cannot afford it. It is likely, however, that her adulterous conduct will be used against her in determining equitable division and alimony.

It should be noted that fees may be awarded at both the temporary hearing and the final hearing. OCGA §19-6-2(b). Often, if one spouse is the sole breadwinner in the family, the other spouse cannot afford to pay his/her attorney’s fees, but needs an attorney to represent his/her interests in the divorce case. In that situation, a Judge may award attorney’s fees at the temporary hearing so that party can continue to have an attorney represent him/her throughout the divorce process.

March 4, 2013

I can no longer afford to move forward with my case - What should I do?

Family law cases can be extremely acrimonious and, for this reason, they may drag on longer and cost more in legal fees than a party initially expected. Sometimes, a party may even be ordered to pay the opposing party’s attorney’s fees in addition to their own. In these situations, a party may get financially strapped, and desire to dismiss the case and file again later when they are financially able to do so. This may or may not solve the issue.

If you are the Petitioner in the case (meaning you filed the action), you can dismiss your petition at any time. You would then no longer continue to accrue attorney’s fees, though you would presumably still owe for work that has already been completed. You would also still owe any fees for the opposing party that had already been assessed against you. If there was a counterclaim filed, however, dismissing your petition will not dismiss the counterclaim, which means that part of the case continues, and fees will, presumably, continue to accrue for both parties. If you are the Respondent in the case (meaning the case was filed against you), you can dismiss your counterclaim (if any), but this does not dismiss the original action filed against you.

It should be noted that the opposing side has up to 45 days after the case is over (which would include a dismissal) to file a Motion for fees under OCGA §9-15-14. While Judges don’t tend to award fees under this statute, it does happen.

If you become unable to afford your own lawyer’s fees, I recommend having a meeting with your lawyer to discuss the issue.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

December 3, 2012

I am a Stay at Home Parent - How Will I Pay My Divorce Attorney's Fees?

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

June 6, 2011

Georgia divorce - Who pays for it?

A question Georgia divorce attorneys are often asked is “Who pays for the divorce?” Generally, each party pays for their own attorney’s fees. However, there are safeguards in place to protect a spouse who has no access to marital assets from the spouse who is using these assets at his/her disposal. Georgia law specifically states that the grant of attorney’s fees shall be within the sound discretion of the trial court so long as the court considers the financial circumstances of both parties a part of its determination. OCGA §19-6-2(a)(1). The fees can be awarded in full, at the end of the divorce proceeding, or on account, which means the spouse ordered to pay the other’s fees must pay them as they become due. OCGA §19-6-2(a)(2). Attorney’s fees may be awarded at a temporary hearing, a final hearing, or both, if the financial circumstances warrant the awards. OCGA §19-6-2(b). Just as any other order, an award of attorney’s fees can be enforced by an action for contempt.

Consider a couple that is going through a divorce, and all the marital accounts are in the husband’s name. The wife cannot make any withdrawals from the marital accounts, or even sign checks, because her name is not on the accounts. Thus, she is likely unable to pay a retainer or to keep up with monthly attorney bills. In this situation, we would highly recommend that the wife make a motion for attorney’s fees, so that she may utilize the martial accounts and defend herself equitably in the divorce action.

May 23, 2011

Attorney's fees against wife upheld in Georgia divorce case

The Supreme Court of Georgia recently upheld an award of attorney’s fees based upon Wife’s conduct during the divorce litigation that caused the Husband to incur unnecessary attorney’s fees. Abt v. Abt, S11F0670 (2011). In that case, after a temporary hearing, the parties were awarded joint legal custody of their two children, with the Wife being named primary physical custodian. Id. Subsequently, the Wife’s boyfriend moved into the marital residence, and “the children revised their election of custodial parent several times, related in part to wife’s new boyfriend and his residence in the home.” Id. Just prior to the final trial, the wife moved for appointment of a guardian ad litem, and the trial was delayed so a guardian could be appointed “to address the custodial fluctuations of the children.” Id. After the final hearing, the trial court ordered the Wife to pay Husband $14,862.50 in attorney’s fees and the Wife appealed. Id. at 2.

The attorney’s fees were awarded pursuant to OCGA §9-15-14(b), which authorizes “an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Id. at 3. The Supreme Court of Georgia held that the trial court did not abuse its discretion in the award of attorney’s fees to Husband, as the trial court found that the Wife’s actions during the divorce proceeding “caused the children to vacillate in their respective custodial elections and resulted in the necessity for the appointment of a guardian ad litem, the need to conduce emergency hearings, the entry of an order restraining wife from approaching husband’s residence or business location, and the overall expansion of litigation.” Id. at 4. These findings supported the trial court’s holding that wife’s actions unnecessarily expanded the litigation and, thus, there was no error in the award of attorney’s fees. Id.

September 6, 2009

Communicating with your Atlanta Divorce Lawyer about fees in an Atlanta Divorce

In a highly contested Atlanta divorce, the costs can rise quickly. Since most contested Atlanta divorces involve situations that can change on a moment’s notice, Atlanta divorce lawyers often have to make quick decisions in order to protect a client’s interest. In certain situations, the Atlanta divorce lawyer has not had the opportunity to discuss the situation with the client ahead of time. In other situations, your Atlanta divorce lawyer may have had support staff working on your file behind the scenes to keep your case moving forward in a timely fashion.

What the above scenarios sometimes result in is a client receiving a bill that they do not understand and are hesitant to pay. In any scenario where you may have a question about a bill, you need to either call or meet with your Atlanta divorce lawyer to candidly speak with him or her about the bill. If you receive a bill that has some charges that appear high, do not call and say that the bill is too high. Contact your Atlanta divorce lawyer to ask him or her about the specific charges that you have questions concerning and why you have those questions. Often, there is a very reasonable explanation for the charges. Sometimes it is a simple billing error that the Atlanta divorce lawyer can quickly correct.

Aside from the obvious reasons why it is important to discuss the invoice with your lawyer, you do not want to lose trust in your lawyer. You may reach a point in your case where a very good settlement offer is made by your spouse. Your lawyer may tell you to take it because he or she knows you would never do better with the Judge you have in your case. If you do not trust your lawyer, you may reject the offer and try your case, only to receive a worse result in front of the Judge and potentially be open to attorney’s fees from your spouse for rejecting a good settlement offer.

One last note to make about communicating with your Atlanta divorce lawyer regarding fees is do not ignore an invoice that you cannot pay. If you are struggling with the invoice, immediately contact your Atlanta divorce lawyer and be honest. Tell him or her your situation and discuss what can be done to deal with the ongoing costs going forward. Pay whatever you can on the invoice as soon as possible and perhaps change your litigation strategy so that you do not spend your children’s college education in a contested divorce case.

May 22, 2009

Atlanta Divorce, Attorney’s fees – Georgia Case Update

On May 4, 2009, the Georgia Supreme Court affirmed the ruling in the Atlanta Divorce case of Patel v. Patel (S09F0505), which denied the Wife an award of attorney’s fees. In a Georgia divorce, a trial court can, after considering the financial circumstances of the parties, award attorney fees to one party in order to "ensure effective representation of both spouses so that all issues can be fully and fairly resolved." Essentially, the Court wants to make sure that there is a level playing field for both parties, keeping one party from gaining an unfair advantage over the other.

In this Atlanta divorce, the parties had been married for 22 years. The Husband was a doctor with his own medical practice, and the Wife had been a stay at home mom. The evidence presented to the Fulton County divorce judge showed that both parties had used marital resources to pay for their attorney’s fees in their divorce. The Court found both parties had been adequately represented, and thus the trial judge did not award the Wife attorney’s fees.

Since the Fulton County divorce judge had considered the respective financial conditions of the parties, she did not abuse her discretion in denying attorney’s fees. In other words, the Wife’s lawyer had already been paid with resources from the parties’ marital estate. Her request for attorney’s fees was essentially asking for additional money from Husband even though her attorney’s fees had already been paid.

February 13, 2009

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:

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