Georgia law permits the filing of actions to modify a former spouse’s alimony obligations under two circumstances: a change in the income and financial status of either former spouse; or the voluntary cohabitation of the alimony recipient with a third party in a meretricious relationship.(1) In proceedings to modify alimony obligations, the law also provides for payment of one party’s legal fees by the other, depending on the outcome of the case. This article explores the standards governing awards of legal fees in alimony modification actions.
Oddly, different standards can apply to alimony modification actions grounded on changed financial circumstances versus a claimed meretricious relationship. As to the former, two statutes grant discretion to the trial judge to award fees either to the prevailing party or to the defending party.(2) One provision states that a trial court “may award attorneys’ fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require.”(3) The other provision states that “the court may require the party [obligated to pay alimony] to pay the reasonable expenses of litigation as may be incurred by the party’s former spouse on behalf of the former spouse in defense thereof.”(4)
In contrast, the governing statute for meretricious relationship modifications provides for mandatory relief to the alimony recipient, but only when the petitioning alimony obligor has failed to prevail in the case. The statute specifically states that, “[i]n the event the petitioner does not prevail in the petition for modification on the ground set forth in this subsection, the petitioner shall be liable for reasonable attorney’s fees incurred by the respondent for the defense of the action.”(5) If the petitioner prevails in the action, the trial court retains discretion to award attorneys’ fees, costs, and expenses of litigation to the prevailing petitioner as the interests of justice may require.(6)
Whatever the grounds asserted for modification, a petitioner need not obtain all relief requested in the petition to modify alimony, in order to be deemed the prevailing party. Rather, the petitioner simply must obtain some reduction of alimony.(7)
Because of the separate statutory provisions allowing discretionary fee awards to the prevailing or defending party in actions grounded on changed financial circumstances, a trial court in such actions may require a petitioning obligor to pay the defending alimony recipient’s legal fees, even if the petitioner succeeds in reducing an alimony obligation.(8)
Lastly, it appears that each of the above-described fee statutes, no matter its wording, enables a court to award only the reasonable legal fees incurred by a party.(9)
(1) O.C.G.A. § 19-6-19(a) and (b). (2) O.C.G.A. § 19-6-19(d); O.C.G.A. § 19-6-22. (3) O.C.G.A. § 19-6-19(d). (4) O.C.G.A. § 19-6-22. (5) O.C.G.A. § 19-6-19(b). (6) O.C.G.A. § 19-6-19(d); and Hendrix v. Stone, 261 Ga. 874, 412 S.E.2d 536, 538(2) (1992). (7) Hendrix, supra, 412 S.E.2d at 538(2); and Shapiro v. Lipman, 259 Ga. 85, 85-86, 377 S.E.2d 673 (1989). (8) Shapiro, supra, 259 Ga. at 86. (9) See Monroe v. Taylor, 259 Ga.App. 600, 602, 577 S.E.2d 810 (2003).