Absent an agreement or a specific statutory entitlement, all litigants, win or lose, must pay their own attorneys’ fees. The Georgia legislature, in the area of domestic relations, enacted two statutory entitlements to (a) ensure that both parties have the ability to obtain effective legal representation; and (b) protect a party with insufficient financial resources from constant legal harassment from a party with substantial resources. Thus, recognizing the likely financial need of a party seeking alimony, the legislature passed O.C.G.A. § 19-6-2(a)(1) to allow an award of attorneys’ fees in cases involving alimony alone, or involving claims for alimony as part of a divorce proceeding. Subsequently, the legislature enacted O.C.G.A. § 19-9-3(g) to address the problem of a wealthier parent bringing repeated actions to modify child custody without fear of paying the attorneys’ fees and expenses of the parent with insufficient financial resources. The legislature expressly provided that O.C.G.A. § 19-6-2 would supersede O.C.G.A. § 19-9-3(g), thereby preventing a child custody litigant in a divorce proceeding from obtaining a more expansive right to attorneys’ fees than a divorce litigant without a child custody component.

O.C.G.A. § 19-9-3(g) evaluates a litigant’s “conduct” such that a trial court can award attorneys’ fees and litigation expenses in situations where one party’s unreasonable behavior needlessly caused the other party to incur fees and expenses that otherwise would not have been incurred. The statute does not seek simply to reward a winning party and penalize a losing party, but rather to gauge whether one party acted in bad faith or without a reasonable basis for his/her litigation position(s).

It is, therefore, important to act in good faith and advance supportable positions necessary to protect the best interests of a child. For example, in one former client’s rejection of settlement for split physical custody 50/50, her objection came from the facts that their divorce involved (a) a high conflict relationship; (b) different parenting styles; (c) one child’s sleep disorder and possible learning disability; and (d) the other spouse’s undisputed marijuana, antidepressant, and anti-anxiety medication usage. Ultimately, denying an award of attorneys’ fees after the trial of the case, the Court found that the Mother’s opposition to split custody was not done in bad faith, but represented a reasonable and necessary difference of opinion put forth in good faith.

Unlike O.C.G.A. § 19-9-3(g), O.C.G.A. § 19-6-2(a)(1) does not evaluate the parties’ conduct. Instead, it accesses the parties’ financial circumstances to ensure that both parties can obtain effective legal representation in an alimony action. Where there is a disparity in the parties’ income and assets which would cause a disparity in legal representation available to each party absent a shifting of resources, the trial Judge has the discretion to rectify that disparity through an award of attorneys’ fees under this Code Section.

Regardless of which statute is used, the Court may only award “reasonable and necessary” attorneys’ fees and expenses. This is determined by the hourly rates of the various lawyers given their experience level and contrasted by rates charged by comparable attorneys with similar or greater experience. It is based upon whether the Court thinks that the fees incurred were necessary given the issues to be developed and tried in the case. The Court considers any settlement offers and the ultimate ruling at the conclusion of a trial.

The question of when attorneys’ fees are awarded is often asked. Typically, the request is made at a temporary hearing for temporary relief and/or at the conclusion of a final trial once a ruling has been made. Attorneys’ fees can also be a part of a negotiated settlement. It is rare, however, for one spouse to voluntarily agree to pay the ongoing legal expenses of the other spouse from the beginning of the divorce through the time of trial. Therefore, clients are responsible for keeping their legal bill current until such time as this issue is resolved by a Court or settlement.

Know Your Judge

In an area such as attorneys' fees, where a judge’s discretion is king, attorneys should endeavor to learn as much as possible about the trial judge’s predilections toward attorneys' fees awards. Attorney Barbara Keon has extensive knowledge of the judicial propensities in the metro Atlanta area, including:

• Her own experience with particular trial judges
• Relationships with other practitioners' regarding their experience with particular trial judges
• Internet search capabilities