CAN I MAKE MY SPOUSE PAY ATTORNEY FEES IN A SC DIVORCE?

Will the court order your spouse to pay your attorney fees in a SC divorce or other family court case? What if the divorce was their fault?

In some cases, the family court can order payment of attorney fees, but it is not automatic – you must ask for it. There are factors that the court must consider, first to determine whether you should be awarded attorney fees, and then to determine how much of the attorney fees the court will order your spouse to pay.

Below, we will take a look at what SC law says about when the court can make your spouse pay your attorney fees – and – how the court decides whether your spouse should pay all or part of your attorney fees.

WHEN WILL THE COURT MAKE MY SPOUSE PAY ATTORNEY FEES IN FAMILY COURT?

The court can order your spouse to pay your attorney fees, but it is not automatic – you must ask for it in the pleadings and at the trial or hearing.

The family court is authorized by statute to award attorney fees and other costs, but the factors that the court must consider 1) to award attorney fees and 2) to decide the amount of attorney fees to award are found in SC case law.

Statutory Authorization for Attorney Fees

In addition to attorney fees, the court can order your spouse to pay other costs that you incurred like expert fees, investigation fees, and court costs. SC Code Section 20-3-130 (H) says:

(H) The court, from time to time after considering the financial resources and marital fault of both parties, may order one party to pay a reasonable amount to the other for attorney fees, expert fees, investigation fees, costs, and suit money incurred in maintaining an action for divorce from the bonds of matrimony, as well as in actions for separate maintenance and support, including sums for services rendered and costs incurred before the commencement of the proceeding and after entry of judgment, pendente lite and permanently.

SC Code Section 63-3-530 (A)(2) also authorizes the family court to order payment of attorney fees, when appropriate, in any domestic action:

(2) to hear and determine actions for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney’s fees, if requested by either party in the pleadings.

These are the SC statutes that authorize the court to award attorney fees, but how does the court know when to award attorney fees? What do you need to prove to the court to get the court to award attorney fees?

WHAT ARE THE FACTORS THE FAMILY COURT CONSIDERS IN AWARDING ATTORNEY FEES?

There are two steps in the court’s decision to award attorney fees. First, the court must decide whether to award attorney fees at all and then the court must decide the amount of attorney fees that should be awarded.

Whether a Party is Entitled to Attorney Fees

In Whitesell v. Whitesell, decided August 26, 2020, the SC Court of Appeals upheld the family court’s decision to order the Father to pay $20,000 of Mother’s attorney fees (she paid a total of $44,000 in attorney fees). The factors that the court must consider are found in E.D.M. v. T.A.M.:

When determining whether an attorney’s fee is proper, the court considers “(1) the party’s ability to pay his/her own attorney’s fee; (2) beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; (4) effect of the attorney’s fee on each party’s standard of living.” E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).

As you can see, it comes down to 1) the financial situation of each party and 2) who prevailed in the case.

In Whitesell, the Court of Appeals found that Father’s financial situation was better than Mother’s and that Mother prevailed in the case – the court granted Mother’s request to modify child support in her favor and denied Father’s request to modify the parenting plan and to modify child support in his favor.

Although the Whitesell Court did not address it directly, the Court can also award attorney fees and costs when one side’s actions cause unnecessary litigation that increases the amount of attorney fees (see Spreeuw v. Barker).

Will the Court Order My Spouse to Pay Attorney Fees Because the Divorce is Their Fault?

Although you would think that fault would be a consideration in awarding attorney fees, SC appellate courts have said that fault is not a factor to be considered.

How Much of the Attorney Fees Will the Court Order My Spouse to Pay?

Once the court has decided to order your spouse to pay attorney fees, the court must determine the amount of attorney fees that should be ordered.

The factors that must be considered in determining the amount of attorney fees are found in Glasscock v. Glasscock, and are also cited in Whitesell:

The amount of fees is determined by: “(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; (6) customary legal fees for similar services.” Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).

In Whitesell, for example, the court did not order Father to pay all of Mother’s attorney fees. But, considering the factors found in Glasscock, the court found that it was appropriate to order Father to pay just under one-half of Mother’s attorney’s fees ($20,000 of a total $44,000).

In summary:

• The winning party is not automatically awarded attorney fees in SC;
• Fault is not a factor that the court is supposed to consider; but
• The court can consider a party’s fault in causing unnecessary litigation in bad faith; and
• The factors that the court will consider include each side’s financial situation and which side was successful in the litigation.

GOT AXELROD?

If you are considering separation or divorce, or if you need help enforcing or modifying the terms of a final divorce decree, call your SC divorce attorney at Axelrod and Associates now at 843-353-3449 or send us a message through our website to find out how we can help.