Will I Be Awarded Attorney’s Fees in a Family Court Case?

Family Court cases can be expensive. Some of the questions that we are most frequently asked involve cost, but the question we get most often is, “Is possible to require the other side to pay my attorney’s fees and costs?”

Some other variations we get are, “If we ‘win’ the case, will the Court automatically require the other side to pay my attorney’s fees?” Or, on the flip side, “If we lose, will I have to pay the opposing party’s fees and costs?”

To all these questions, the answer is a favorite for lawyers: “It depends.” To understand more about the factors to be considered when awarding payment of attorney’s fees, keep reading.

Does the Loser Always Pay?

The first misunderstanding that needs to be cleared up is that there are no “winners” or “losers” in Family Court cases in South Carolina. Judges do not seek to choose one side over the other, but rather to solve difficult problems and to do so in a mutually agreeable way whenever possible. That being said, the person who walks away with more of what they asked for is not necessarily entitled to having attorney’s fees paid by the other side.

In the United States, the courts do not operate on a “loser pays” system. The reason is simple: doing so would discourage people from raising legal claims, even those that may truly be valid and/or necessary. To avoid creating troubling disincentives, both parties are typically made responsible for their own costs in most cases. When fees are awarded, there are typically more facts considered than just whether someone “won” or “lost” the case.

Are Attorney’s Fees Ever Awarded in a Divorce?

Absolutely, though this is more the exception rather than the rule. Courts are able to and sometimes do award fees, as authorized in South Carolina Code Sections 20-3-130 and 63-3-530. When the Court chooses to award attorney’s fees and costs, it usually occurs in one of the following three situations:

• To level the playing field when there are huge differences in income and/or assets that could lead to disparities in representation. For instance, if a wealthy surgeon divorces his stay-at-home wife, a family court judge may require the doctor to pay all or part of his wife’s fees to ensure that she has a fair chance at an equitable outcome and is not forced to accept whatever offer, however unfair, he might propose.

• To reimburse a party for fees incurred in a case that shouldn’t have been tried. If the Court determines that a case should not have been taken to trial, it may require the losing party to reimburse the prevailing party’s attorney’s fees. Having an experienced family law attorney will prevent you from finding yourself in this position.

• To discourage misconduct by parties in pending litigation. If one party takes actions that are unnecessary, irrelevant or designed to increase the other party’s attorney’s fees, the Court may require that party to pay the other’s fees. This is yet another reason to ensure that your attorney is experienced and understands how cases should (and shouldn’t) be handled.

How Does the Court Decide How Much to Award?

When awarding fees, the family court judge will consider a range of factors, including the conduct of parties in and out of court, as well as the income and overall financial condition of the parties. Behaving badly in court or filing frivolous motions that waste time and money are good ways to get slapped with a fee award and do not go unnoticed by judges.

Once the judge has decided that fees are appropriate, he or she will then review the fees billed by the attorneys and make an award of a reasonable figure, taking into consideration the time and complexity of the case. Depending on the case and the factors at play, the award may be all or just a portion of the fees billed by the attorney.

The two main cases in South Carolina on this subject are E.D.M. v. T.A.M. (1992), which addresses whether or not a party is entitled to fees, and Glasscock v. Glasscock (1991) which addresses the fee amount that is appropriate. More recently Couch v. Couch (2020) focused on a party’s actions in a case, which made the litigation more contentious.

If you or someone you know is facing family court litigation, Ben Stevens has provided exceptional legal counsel and support to families throughout South Carolina for over twenty-five years, handling all matters of family law, such as child custody, child support, and divorce. He and his team are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact our office today at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.