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Attorney’s fees in domestic cases

One of the more common questions that clients ask is whether the court can order one of the parties to pay the other’s attorney’s fees as part of a domestic case, such as divorce or child custody proceedings.  This issue may come up because one of the parties has difficulty paying an attorney for the proceedings, or because the papers filed by the other party request attorney’s fees.  The short answer is that yes, the court may award attorney’s fees as part of a divorce or child custody proceeding, but there are a number of factors that influence the court’s decision. 

When attorneys file a divorce complaint or a petition for establish or modify custody or support, it is common for them to ask, as part of the requested relief, that the other party pay attorney’s fees.  There is a longstanding legal principle that you cannot be granted relief that you did not request.  Because it is sometimes difficult to tell at the time of filing whether there will be good grounds for the court to award attorney’s fees, attorneys will often request attorney’s fees to secure that relief for their client in the event that the facts support such an award.  However, it is important to know that just because the attorney asks for attorney’s fees does not mean the court will automatically grant that relief, even if the attorney prevails.

In divorce actions, the court may order either party to pay for the “reasonable and necessary expenses” of the other party at any time.  Maryland Family Law § 7-107.  Section 7-107 of the Family Law article defines “reasonable and necessary expenses” to include “1) suit money; 2) counsel fees; and 3) costs.”  Before awarding attorney’s fees, the court must consider the financial resources and financial needs of both parties, and whether there was a substantial justification for prosecuting or defending the proceeding. 

Similarly, in child custody and support cases, the court may award counsel fees that are “just and proper under all circumstances,” taking into consideration “the financial status of each party, the needs of each party; and whether there was a substantial justification for bringing, maintaining, or defending the proceeding.”  Maryland Family Law § 12-103.

In addition to looking at the financial status of the parties and the justification for the proceedings, the court will also have to determine that the requested fees are reasonable, and that the other party has the ability to pay.  Randolph v. Randolph, 67 Md. App. 577, 588-589 (1986); Painter v. Painter, 113 Md. App. 504, 528-529 (1997).  It is also important to ensure that the judge states his basis for granting or denying an award of attorney’s fees on the record.

There are two situations where the court will be tempted to award attorney’s fees: 1) where one of the parties has limited financial resources and there is a demonstrated need for representation; and 2) where one or both of the parties retained counsel and was forced to expend legal fees on unnecessary proceedings.  The court will not award attorney’s fees just because the other party had to hire counsel to defend him/ herself in the proceeding. See Welsh v. Welsh, 135 Md. App. 29, 41-44 (2000) (no award of attorney’s fees where both sides created discovery disputes and other delays).  As a practical matter, the court will generally not award attorney’s fees unless the conduct of the other party is particularly egregious, and every situation must be evaluated individually.  

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