Divorce is a difficult process, both emotionally and financially, for the parties involved. You and your former spouse will have to make adjustments – having one income rather than two and dividing assets are just a few of the adjustments. In addition to the financial strain, you will have to consider legal fees. On top of all that, the fees associated with a divorce can be costly, especially if children are involved.

When children are involved, there will be legal fees related to child support and child custody added to your total bill. If you were the dependent spouse during the marriage (stay-at-home parent, etc.) legal fees may be an even greater challenge for you. However, resources exist that may allow you exemption from payment of attorney’s fees related to custody and child support. This article will detail the process and identify those who qualify to have their attorney’s fees covered.

North Carolina law allows a party acting in good faith who is unable to pay litigation costs to have attorney’s fees paid by the other party. The goal is to level the playing field between the dependent and the supporting spouse.

“Dependent spouse” refers to a spouse who substantially depends on the other spouse for maintenance and support. The most common example is a stay-at-home mother. Nevertheless, working spouses can also classify as dependent spouses.

The first step requires the court to decide whether the party seeking attorney’s fees has acted in good faith. If a party files an unsubstantiated, meritless claim for child support, that party may be required to pay the other’s attorney’s fees for not acting in good faith.

After good faith has been established, the court will determine the party’s ability to pay attorney’s fees. Simply, the person requesting payment of attorney’s fees must be unable to pay for counsel on their own. It would be unfair if one spouse possessed unlimited access to funds to spend on litigation, while the other was barely able to obtain counsel because of a lack of funds.

There is an additional factor you must prove if you are seeking attorney’s fees solely in a child support action. In addition to good faith and inability to pay litigation costs, you must prove that the party who was ordered to pay support has refused to pay adequate support under the circumstances.

How do I get attorney’s fees?

A party can request attorney’s fees in the initial pleadings, or file a motion after the court has made a determination in the main action (for example, custody or child support). If there is evidence supporting an award for attorney’s fees, the judge will grant the request.

How much can I get?

You can recover reasonable attorney’s fees associated specifically with your child support/child custody hearing. Any portions of trial unrelated to child support/custody will be not be included in an award for attorney’s fees. Additionally, an award for attorney’s fee sought during custody and support proceedings will not cover work your attorney did involving other parts of your divorce. Therefore, you will receive money for fees associated with custody and support, but not for other aspects such as alimony, divorce or equitable distribution. If you want an award of attorney’s fees for other divorce-related matters, you must include such a request in separate pleadings.

Additionally, the attorney’s fees you seek must be reasonable. Your attorney is prohibited from inflating fees solely because your opponent is footing the bill, and those fees cannot be unusually high. The judge will take into account several factors to determine whether a fee is reasonable, such as:

  • Scope of legal services;
  • Skill required to perform the work;
  • The attorney’s usual hourly rate;
  • The hourly rate compared to that of other attorneys.

Furthermore, a party is permitted to recover attorney’s fees for contempt proceedings involving the opposing party failing to abide by an existing support or custody order.

In summary, if you are in the midst of a child support and/or child custody case, you may be entitled to compensation for your attorney’s fees by the opposing party. But you must first make a request for such fees in either your initial pleadings or in a subsequent motion. Determining eligibility involves asking the following questions:

  1. Will I qualify as a dependent spouse?;
  2. Am I acting in good faith?;
  3. Am I unable to pay the costs of litigation?; and
  4. Are my attorney’s fees reasonable?

If you answer yes to all of the above questions, you should be able to recover attorney’s fees.