Can I Make My Spouse Pay My Attorney’s Fees for Child Support Proceedings?

Rising Legal Fees

Divorce is undoubtedly difficult from an emotional standpoint, but it can also be difficult for you financially. You and your former spouse will be adjusting to living off of one income, rather than a combined income, and you will be separating your assets. In addition to this financial strain, you will also have to consider legal fees. The price tag for a divorce is not always an easy pill to swallow, especially if you and your former spouse have children.

When children are involved, you can expect to add legal fees related to both child support and custody to your total legal bill. And this can add up. If your attorney charges a flat rate for her services, the price will increase based on your need for litigation related to your child. If you are paying hourly, every phone call, email, meeting, and court appearance related to your custody and child support case will add hours of legal fees to your bill.

Attorney’s fees can present an even greater challenge if you were the dependent spouse during your marriage. As you are starting your new life, and potentially a new job, you may wonder how you will pay your ever-mounting legal bills. But, don’t fret! You may not have to pay your own attorneys fees related to custody and child support.

This article will answer your questions related to how this works and who is eligible to have their attorneys fees paid.

Who is eligible?

North Carolina law provides that an interested party who is acting in good faith and unable to defray the costs of litigation may be entitled to have their attorney’s fees paid by the other party. The purpose of this provision is to allow the dependent spouse to meet the supporting spouse on an equal playing field.

The term “dependent spouse” refers to the spouse who is substantially dependent on the other spouse for maintenance and support. The classic example of a dependent spouse is a stay-at-home mom, although working spouses can still be determined to be dependent. Please refer to our alimony center for a more in depth discussion on supporting and dependent spouse classifications.

First, the court must determine that the party seeking attorney’s fees has acted in good faith. If a party files a frivolous action for child support, because that party was not acting in good faith in filing the suit, that party may have to pay the attorney’s fees of the opposing party.

Once good faith has been established the court will look to see if the party has insufficient means to defray the expenses related to the lawsuit. This simply means the party requesting attorney’s fees to be paid is unable to pay for adequate counsel on her own. The purpose of asking one party to subsidize the other party’s attorney’s bills is so that they may meet on an even playing field. It would be inherently unfair if one spouse were able to spend an unlimited amount of money obtaining legal counsel while the other spouse was barely scraping by.

If you are seeking attorney’s fees in an action solely for child support, there is an additional element you must establish in order to succeed. You must still show you are acting in good faith, and that you have insufficient means to defray the cost of litigation, but you also must prove an additional element – that the party ordered to pay child support has refused to pay adequate support under the circumstances.

How do I get attorney’s fees?

You may include your request for attorney’s fees in your initial pleadings, or by filing a motion after the determination has been made in the main action (i.e., the custody or child support hearing). If the evidence supports an award for attorney’s fees, the judge will grant your motion.

How much can I get?

You can recover reasonable attorney’s fees related specifically to your child support and/or custody hearing. Portions of the trial unrelated to these actions will not be part of an award for attorney’s fees. Also, an award of attorney’s fees sought during custody and child support proceedings will not cover any work your attorney did for other aspects of your divorce. That means that you will be compensated for your fees associated with custody and child support, but not your fees associated with equitable distribution, alimony or divorce. If you want attorneys fees for other divorce related proceedings you will have to include that request in separate pleadings.

The amount you are seeking in attorney’s fees must be reasonable. Your attorney can’t inflate your fees simply because the opposing party is paying them, and the fees cannot be unusually high. The judge will consider the scope of the legal services; the skill required, the time spent, the attorney’s typical hourly rate, and the hourly rate compared to other attorney’s rates to determine if the fees are in fact reasonable.

Additionally, you can recover attorney’s fees for proceedings related to contempt where the opposing party has failed to abide by an existing custody or child support order.

Bottom Line:

If you are litigating child support and custody issues, you may be eligible to have your attorney’s fees compensated by the opposing party. You may make a request for attorney’s fees in your initial pleadings, or in a subsequent motion. To determine if you are eligible ask yourself the following questions:

  1. Will I qualify as a dependent spouse?
  2. Am I acting in good faith?
  3. Am I unable to defray the cost of litigation?
  4. Are my attorney’s fees reasonable?

If you can answer yes to the questions above, you should be able to recoup your attorney’s fees, and should you succeed in doing so you can reduce the cost of your divorce.

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