Family Court cases can be expensive. Some of the questions that we are most frequently asked involve cost. Is possible to require the other side to pay your attorney's fees and costs? If you “win” the case, will the Court automatically require your attorney's fees to be paid? If you lose, will you have to pay the opposing party's fees and costs? To find out more about awarding of fees in a South Carolina divorce, keep reading.
Does the loser pay?
The first misunderstanding that needs to be cleared up is that there are no “winners” or “losers” in Family Court cases. Judges do not seek to choose one side over the other, but rather to solve difficult problems and to do so in a mutually agreeable way when possible. That being said, the person who walks away with more of what they asked for is not entitled to having attorney's fees paid by the other side.
In the U.S., the courts do not operate on a “loser pays” system. The reason is simple: doing so would discourage people from raising legal claims, even those that may truly be valid and/or necessary. To avoid creating troubling disincentives, both parties are typically made responsible for their own costs in most cases.
Are fees ever awarded in a divorce?
Absolutely, though this is more the exception rather than the rule. Courts are able to and sometimes do award fees, as authorized in South Carolina Code Sections 20-3-130 and 63-3-530. When the Court chooses to award attorney's fees and costs, it usually occurs in one of the following three situations:
- To level the playing field when there are huge differences in income and/or assets that could disparities in representation. For instance, if a wealthy surgeon divorces his stay-at-home wife, a family court judge may require the doctor to pay all or part of his wife's fees to ensure that she has a fair chance at an equitable outcome and is not forced to accept whatever offer, however unfair, he might proposes.
- To reimburse a party for fees incurred in a case that shouldn't have been tried. If the Court determines that a case was clear and that it should not have been taken to trial, it may require the losing party to reimburse the prevailing party's attorney's fees. Having an experienced family law attorney will prevent you from finding yourself in this position.
- To discourage misconduct by parties in pending litigation. If one party takes actions that are unnecessary, irrelevant, or designed to increase the other party's attorney's fees, the Court may require that party to pay the other's fees. This is yet another reason to ensure that your attorney is experienced and understands how cases should (and shouldn't) be handled.
How does the court decide how much to award?
When awarding fees, the family court judge will consider a range of factors, including the conduct of parties in and out of court as well as the income and overall financial outlook of the parties. Behaving badly in court or filing frivolous motions that waste time and money are good ways to get slapped with a fee award and do not go unnoticed by judges. Once the judge has decided that fees are appropriate, he or she will then review the bills and reduce the amount to a reasonable figure, taking into consideration the time and complexity of the case. The two main cases in South Carolina on this subject are E.D.M. v. T.A.M. (1992) which addresses whether or not a party is entitled to fees and Glasscock v. Glasscock (1991) which addresses the amount of fees that is appropriate.