Attorney Fees in a Divorce

The award of attorney fees in a Georgia divorce is at the discretion of the family court judge as to whether to order one party to pay the other party's legal fees and costs. This article is to help you understand how the judge will make the decision on whether to award costs and fees, which party to award them to and how much to award. An award of costs and fees as part of the expenses of litigation is left to "the sound discretion of the trial court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney fees, if any, to be allowed against either party." OCGA § 19-6-2 (a) (1).

Georgia Law

The sole issue on appeal is the correctness of the order denying appellant's application for attorney fees. The trial court cited our decision in Southerland v. Southerland, 247 Ga. 585, 277 S.E.2d 684 (1981), in support of its conclusion that appellant's application was not timely filed. Prior to Southerland, the settled rule in Georgia was that "neither an application for attorney fees nor a hearing thereon may be filed or heard after a divorce verdict, [although] the judge may reserve judgment on such an application until after verdict when such application is filed prior to verdict." Hagstrom v. Hagstrom, 235 Ga. 853, 855, 221 S.E.2d 602 (1976). The reason for this rule was that once a verdict or decree dissolving the marital relation has been returned or entered, the trial court is without authority to award attorney fees, which are considered part of temporary alimony. See McConaughey, Georgia Divorce, Alimony and Child Custody 94 (2d ed. 1980). In Southerland v. Southerland, supra, this court modified the traditional rule to bring it more in line with the realities of modern bifurcated divorce proceedings. "[W]ith the advent of the bifurcated trial of a divorce case ... the divorce decree is entered and the other issues are reserved for a subsequent hearing. Therefore, we hold that it is now sufficient to request attorney fees after the entry of the divorce decree but prior to the conclusion of the hearing on the remaining issues." 247 Ga. at 585, 277 S.E.2d 684.

We interpret Southerland to mean that attorney fees must be requested at some time prior to entry of final judgment in a divorce trial (i.e., "prior to the conclusion of the hearing on the remaining issues"). Once such a request is made, the issue of attorney fees is preserved, without further reservation by the trial judge or additional application by the parties, for decision by the trial court. See Wife H. v. Husband H., 312 A.2d 628, 629 (Del.1973). Appellant has made two separate requests for attorney fees: once in her original complaint and once in her January 1983 motion requesting attorney fees. Each of these requests was made prior to the entry of final judgment of divorce in the case, and either request authorized an award of attorney fees to applicant. The trial court erred in ruling otherwise.

Attorney fees and expenses of litigation are awarded in divorce cases in order to insure effective representation of both spouses so that all issues can be resolved fully and fairly. Jackson v. Jackson, 231 Ga. 751, 753, 204 S.E.2d 297 (1974). In light of the statutory policy favoring attorney fee awards in divorce trials, see OCGA § 19-6-2 (Code Ann. § 30.202.1), and our decision in Southerland v. Southerland, supra, blind adherence to outmoded, technical rules of practice in this area is neither necessary nor desirable.

Georgia Case Law on Attorney Fees, Blanchet v. Blanchet, 251 Ga. 379, 306 S.E.2d 907 (Ga. 1983)

The judge's decision to award costs and fees will be based on the abilities of each party to pay their own fees and which party prevails in the divorce action.

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