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Getting Attorney’s Fees in Family Law Cases

In North Carolina family law cases, a party may seek attorney’s fees in court cases involving child custody and support, and for temporary and permanent alimony, among other claims. With a couple of rare and unique exceptions to the rule, attorney’s fees aren’t usually available to be awarded by the court in equitable distribution cases for division of marital assets and debts.

Child Custody and Support Claims

The law permits parents to ask the court to award attorney’s fees in child custody and support cases, including cases when a parent files a motion to modify the order that is already in place. There are three requirements. First, the person asking for fees must be an “interested party” meaning he or she is someone entitled to exercise the legal right to participate in the lawsuit. Second, the person must be acting in good faith, not filing a frivolous claim.  The third requirement for the court to address is whether the person “has insufficient means to defray the expense of the suit.” In other words, the person had to turn to the courts to get help, which has created a financial hardship.  If the claim was for child support there is a fourth requirement.  The parent who should be paying support “has refused to provide support which is adequate under the circumstances.” If the parent files a frivolous claim, the court is also entitled to award fees to the other parent. NC Gen. Stat. §50-13.5 

Alimony and Temporary Alimony

If the court awards alimony or temporary alimony, called postseparation support, the judge has the authority to award attorney’s fees if the financially dependent spouse doesn’t have sufficient means to subsist during the pending case. That means the dependent spouse can’t meet living expenses until the judge enters an order for alimony. As is the case with children’s claims, the court must rule on whether the dependent spouse “has insufficient means to defray the expense of the suit.” These requirements also apply when the dependent spouse files a motion to modify the alimony. NC Gen. Stat. §50-16.4.
 
How Does it Actually Work in Court?
 
At the trial, the attorney submits an affidavit about the fees, along with billing statements to show what has been paid. The judge generally confirms the fee is reasonable, considering the attorney’s skills and qualifications, and the type of work the attorney performed. Customarily, the client has to pay the attorney at the beginning of the case. If the fees are awarded, they are either reimbursed to the client or applied to any outstanding balance the client owes to the attorney. As is the case in so many family law cases in North Carolina, the judge has broad discretion when ruling on fees. A judge is free to order some, none or part of the fees requested.
 

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of February 2016. www.AmyEdwardsFamilyLaw.com © 2016.

 

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