Let’s be frank: most people’s idea of a good time is not spending thousands of dollars on a Charleston Family Court lawyer. Most people, when spending thousands of dollars on anything, want it to be on something tangible, or something fun, like a new car, a vacation, a child’s college tuition. Spending money on a Charleston Family Court lawyer can be made even less pleasant when you’re being led down the path of divorce by what you perceive to be your spouse’s unilateral wrongdoing, and can be complicated by the drastic financial impact already being wrought by your separation.
So it is little surprise that we are asked frequently, often first, will I be able to make my spouse pay me back for these fees? Our response is almost always ambiguous, because the law requires a multi-part analysis, and often there simply isn’t enough information available early on to even make an educated guess. In general, the Family Court has three questions to answer in making a determination regarding the “reallocation” of attorney’s fees and costs:
1. Should the Family Court actually make an award of attorney’s fees to one party or the other?
The seminal case analyzing this prong is E.D.M. v. T.A.M., 307 S.C 471, 415 S.E.2d 812 (1992), which requires a judge to examine four factors before deciding whether one party or the other should actually be reimbursed for fees:
a) Each party’s ability to pay his or her own attorney’s fees and costs.
The ability to pay fees is one of the most important overall factors in a fee analysis. Given a substantial disparity between the incomes and/or assets of each of the parties, a judge is exponentially more likely to award fees to the party with less income, simply as a matter of fairness.
b) Beneficial results obtained.
The better one party does in a case , prevailing on more issues than not, the more likely one is to be reimbursed for fees and costs. This factor should always highly motivate a party, particularly a party who may fit many of the other criteria for paying fees, to stake out very reasonable positions from the outset and to always have an eye toward reasonable compromise.
c) Parties’ respective financial conditions.
Even when parties have similar incomes, the payment of fees can have a drastically different impact on their overall financial conditions. By way of example, a retired pensioner with a lower overall income may be more financially secure than a good earner with limited retirement assets.
d) Effect of attorney’s fees and costs on each party’s standard of living.
Would the payment of fees cause one party or the other to lose his or her home, to go deeply into debt from which he or she may not recover? The Family Court will generally be sympathetic in its fee analysis to the part who seems to be hanging on by a financial string.
2. Once the Family Court has decided whether or not to award a reimbursement of fees to a party, how much should the Court require be paid?
Whether or not to award a fee is a separate question entirely from how much to award. Here, the most-cited case is Glasscock v. Glasscock, 304 S.C. 158, 403 S.E. 2d 313 (1991), which requires analysis of the following factors:
a) Nature, extent, and difficulty of the services rendered.
Simply put, was the prosecution of the case simple or difficult? Did it require complicated matters of law that required the application of many man-hours to bring to trial? Was the case complicated by the unreasonable or intractable positions of the other spouse? This is another big one. Don’t put yourself in the position of being the hardheaded litigant who fights everything tooth and nail.
b) Time necessarily devoted.
“A lawyer’s time and advice are his stock in trade.” Lawyers charge for their time, so a total fee is wholly dependent upon the amount of time he or she spends on a case. A Family Court judge will analyze the total number of hours a Charleston Family Court lawyer represents were expended on the case, how those hours were expended, and determine whether or not the whole of the hours expended were necessary to bring the matter to conclusion.
c) Counsel’s professional standing.
Lawyers bill at a certain hourly rate, and the Family Court will analyze whether or not the hourly rate charged by the attorney is commensurate with his or her standing in the local bar. Lawyers fresh out of law school can’t get away with charging $300/hour, but there are plenty of lawyers who can, and do.
d) Customary fee for similar services.
In the judge’s own experience, is the total fee being requested in or out of line with the fees sought in similar matters?
This is a relatively new development in the law, encapsulated by Spreeuw v. Barker, 385 S.C. 45, 72-73, 682 S.E.2d 843 (Ct. App. 2009). In short, if one goes to great lengths to hide the facts of the case, gets dragged kicking and screaming the whole way through the divorce, and then turns out to be wrong, you can almost bet some award of fees will be justified by that behavior.
Noticeably absent from this all this analysis, and something that comes as a shock to most laypeople (and more than one attorney, also)? Fault. Absent a justification for an award of fees under all of the other factors, fault alone is insufficient to justify the reimbursement of fees. Can a judge shoehorn fault into one of the other factors, if he or she really wishes to? Certainly. But don’t get caught relying solely on your broke spouse’s adultery as a path to fee reimbursement — it’s unlikely to happen.
Somewhat separate and apart from the notion of fee reimbursement is the concept of suit costs, wherein a party asks a judge to require the other party to advance him or her the cost of financing the divorce in advance. The award of suit costs is, anecdotally, somewhat erratic in this state, and can never truly be relied upon. Suit cost awards are most common in situations in which there is truly total financial disparity; one party controls all of the income and resources, and, for example, the other has spent her whole life at home raising children, or is unable to work because of some disability or infirmity.
Keep in mind, a Charleston Family Court lawyer is prohibited from taking cases on a contingency basis, meaning all such attorneys will charge a retainer fee up front. While it may be possible to get your investment in your divorce back somewhere down the line, always be sure to reach out to friends and family for financial support at the outset of a divorce. They are your friends and family for a reason.