How Do I Get Attorney’s Fees from My Spouse?

Getting Alimony in North Carolina is Getting Expensive

While going through a divorce can be emotionally draining, it can also be a strain financially. Not only are you splitting your assets, but you are also paying attorney’s fees for just about everything having to do with your divorce.

If your attorney bills you hourly, you are most likely getting charged for every second your attorney spends on your case. Phone calls, emails, meetings, and court appearances all cost you money. If your attorney is charging a flat rate for her services, the price tag can still be more than you would like.

With regard to alimony in particular, attorney’s fees can place you under a serious financial burden. If you are the dependent spouse (see below), you may be wondering how you are going to be able to pay your attorney, and if you are required to use your alimony award to settle your bill. The surprising truth is, you may not have to pay your attorney’s fees at all!

Now you are wondering: How does this work? Am I eligible? What do I need to do? This article is designed to answer all of your questions with regard to this issue.

Who is Entitled to Attorney’s Fees?

First, North Carolina law provides that if a dependent spouse would be entitled to alimony or post-separation support, the court may award the dependent spouse reasonable attorney’s fees in the court order.

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.

In addition to qualifying as a dependent spouse, in order to be eligible to an award of attorney’s fees the judge must also make a determination that the dependent spouse lacks sufficient means to defray the costs of litigation. Basically, the judge will look at all relevant factors, including the disposable income of the dependent spouse, to determine whether awarding attorney’s fees is appropriate and that the amount awarded is reasonable. If the dependent spouse has a separate estate that allows her to hire and pay for adequate counsel, generally the judge will deny an award for attorney’s fees.

How Do I Get Attorney’s Fees?

If you think you will qualify as the dependent spouse in your pending alimony hearing, you must make a request for attorney’s fees prior to the hearing. This request can be made in a pleading or motion, and must be done in advance of the hearing so that the opposing party is on notice that you are seeking this relief. You may not make the request for the first time at the alimony hearing.

How Much Can I Get?

You may recover fees related to the time your attorney spent on your case prior to filing pleadings. This will include your meetings with your attorney, and any correspondence such as emails, letters or phone calls that contributed to your legal fees. Bear in mind that this is limited to time billed for your alimony claim, if you succeed in obtaining an award of attorney’s fees in your alimony hearing you are only entitled to fees associated with the alimony litigation, not time your attorney spent on other aspects of your case.

Additionally, should your ex file an appeal of the alimony award, you are entitled to reasonable attorney’s fees for your attorney’s time spent on the appeal.

With regard to the amount of attorney’s fees awarded, the statute provides that they must be “reasonable.” Because this term is fairly vague, the judge will have to look at several factors and discuss these factors in the order she issues. The judge will consider the nature and scope of the legal services, the skill and time required, and the customary fees charged for such services. It all hinges on reasonability; if your attorney generally bills at $200 per hour and is seeking $500 per hour for time spent on your case, the judge would most likely find the higher rate to be unreasonable.

It is worth noting that if your attorney is representing you on a pro bono basis (for free) you will not be entitled to an award of attorney’s fees. If you are not obligated to pay your attorney the court will not award attorney’s fees simply to punish the supporting spouse. The fees must be reasonable, and where there are no fees, there is no award.

What if I Already Have an Alimony Order?

If you have already obtained an alimony award, you may also be entitled to attorney’s fees when you file to modify the order. The same two-prong test we discussed above applies to modification; you must show that you are the dependent spouse (and entitled to the modification sought) and that you are unable to defray the expenses associated with this action.

If you file an action seeking enforcement of the previous order, on the other hand, the court is not permitted to award attorney’s fees.

Does it make a difference if I have a prenuptial or separation agreement?

Prenuptial agreements and separation agreements are essentially contracts, and you generally are bound by what you agree to.  If your valid prenuptial or separation agreement includes a provision prohibiting you from seeking attorney’s fees, then you will be barred from such relief.

How Do I Get the Money?

Once the court has determined you are entitled to attorney’s fees, you may be wondering logistically how you will get the money. Where reasonable attorney’s fees are awarded, the supporting spouse must pay in the same manner she would pay the actual alimony award, and North Carolina law allows for alimony to be paid many different ways.

Alimony, and attorney’s fees for alimony, can be paid by lump sum, periodic payments, income withholding, or by transfer of property. Should your ex fail to comply with an order requiring her to pay attorney’s fees, she may be found in contempt and is subject to remedies such as arrest and garnishment of wages.

Bottom Line:

If you are seeking alimony from your former spouse, and can prove you are a dependent spouse, you should seek relief in the form of attorney’s fees in your initial pleadings. Here are some questions to ask to determine if you are eligible:

  1. Will I qualify as a dependent spouse?
  2. Am I entitled to the relief I am seeking (i.e., an alimony award or modification of an alimony award)?
  3. Am I unable to defray the cost of litigation?
  4. Are my attorney’s fees reasonable?
  5. Did I (or do I still have time to) request attorney’s fees as relief before the hearing?

If you answer yes to the questions above, then you should be able to recoup your attorney’s fees, and if you are successful the price tag of your divorce can see a significant reduction.

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