Divorcing clients often ask if they or their spouses can use joint checking or savings to pay attorneys’ fees and litigation expenses. In Georgia, those funds, as well as all other moneys accumulated by either party during the course of the marriage, whether held in joint accounts or individual accounts, generally are considered marital property subject to equitable division between the spouses on divorce.(1) The filing of a divorce action typically activates a domestic standing order which – among other provisions and with minor variations in phrasing – bars either party from selling, encumbering, trading, contracting to sell or otherwise disposing of or removing from the jurisdiction of the court any of their marital property, except in “the ordinary course of business.” Standing orders do not define the term “ordinary course of business” though. And while logic might deem any lawsuit in which a person becomes involved, and its associated expenses, as anything but ordinary, no binding decision from a Georgia appellate court has addressed the issue. Individual trial judges consequently remain free to form their own differing views on this subject. Those judges deeming the payment of attorney fees as outside the ordinary course of business may hold a spouse in contempt of the standing order, for using marital funds to pay attorney fees in a divorce action without the other party’s consent.

Absent consent, the safer route would be to seek an award of attorney fees from the court. Georgia law allows trial judges to grant fees to a party in an action for divorce, divorce and alimony, or contempt of court arising out of either type of action, after considering the financial circumstances of both parties.(2) Upon written petition of a party, a court must hold a temporary hearing at which a spouse, among other relief, can request an award of attorney fees from the parties’ marital funds to pay that spouse’s litigation expenses.(3) A party also can request such an award at the conclusion of the case.(4)

In determining whether to award attorney fees, a court cannot take into account a party’s wrongdoing committed in the divorce action.(5) A court should, however, be able to consider acts of adultery committed prior to the divorce action by the party requesting the fee award. Attorney fees awarded in divorce actions are considered a part of alimony, and a divorcing spouse cannot obtain alimony if his/her acts of adultery caused the separation of the parties.(6) Accordingly, one spouse can oppose the other’s request for a fee award with evidence that the requesting party’s adultery caused the dissolution of the marriage. The success of that argument unfortunately will vary by the judge assigned to a case, because no binding decision from a Georgia appellate court has squarely addressed this issue.

(1) Payson v. Payson, 274 Ga. 231, 232 (2001).

(2) O.C.G.A. § 19-6-2(a)(1).

(3) O.C.G.A. § 19-6-3(a); U.S.C.R. 24.2.

(4) O.C.G.A. § 19-6-2(a).

(5) Williams v. Cooper, 280 Ga. 145, 146 (2006).

(6) See O.C.G.A. § 19-6-1(b); Vakharwala v. Vakharwala, S17F0101, *6 (May 1, 2017); Alejandro v. Alejandro, 282 Ga. 453, 454(1) (2007); Scott v. Scott, 251 Ga. 619, 620(3) (1983).

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