In divorce related cases, litigation can continue for years. People who are divorced may have to come back to court for modification of orders for spousal support, child support, or custody of children.
Subsequent court proceedings can be needed to enforce the original divorce decree. People who have children together, whether married or not, can be forced to go back to court to enforce child support and custody orders or to modify them in the future. The same is true for people who adopt children. Same-sex couples may also have joint property together or adopted children, and end up in court over those.
In Georgia law, various rules allow for the award of attorney’s fees in family law situations.
The basic rule is OCGA § 19–6–2, which authorizes the trial court in a divorce or divorce related action to exercise its discretion and, after considering the financial circumstances of the parties, to award attorney fees as necessary to ensure the effective representation of both parties. Concerning child support, under O.C.G.A. 19-6-15(k)(5) attorney’s fees can be awarded to the “prevailing party” in a modification of child support as the interests of justice may require. A mandatory award of attorney fees can occur where a custodial parent prevails in an upward modification of child support based upon the noncustodial parent’s failure to be available and willing to exercise court ordered visitation. In that situation, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to the custodial parent.
Under O.C.G.A. section 19-9-3(g) the trial court has the discretion to award fees in a custody modification action. Under O.C.G.A. section 19-9-3(g), the court does not have to consider financial circumstances or whether the moving party is the “prevailing party.”
A party must show the court the code section that is to be the basis of the award. The attorney fees also must be allocated to the various issues in the case, and the rule which governs the issue must be cited.
Lastly, in most types of legal cases, including family law, under OCGA § 9–15–14, a trial court may award attorney fees against any party who has caused delay or harassment or who has unnecessarily expanded the litigation by improper conduct including discovery abuses.
David S. Walker
Attorney at Law
David Sinclair Walker Jr. PC
P.O. BOX 871329
Stone Mountain GA 30087
6340 Sugarloaf Parkway, Suite 200
Duluth GA 30097
2330 Scenic Highway
Snellville GA 30078
Telephone - 770-972-380
Facsimile - 770-921-7418
Admitted in GA and D.C.
Georgia Bar No. 731725