How Can I Make the Other Party Pay My Counsel Fees?

Introduction

mONEYWhen you hire an attorney, you enter into a contract with that attorney. The specific terms of that contract are governed by the Pennsylvania Rules of Professional Conduct but may vary from attorney to attorney. In family law matters, a party’s contract with their attorney is typically one which involves an initial retainer against which the attorney’s work is billed based on their hourly rate.

There are many instances through divorce, support and custody litigation that a party may wish to seek attorneys’ fees against the other party. Perhaps it is because the party seeking payment of their attorneys’ fees is financially dependent on the other party and their initial retainer with their attorney has been exhausted or perhaps because the other party has failed to comply with the terms of an agreement or court order.  Regardless, Pennsylvania law provides many avenues for one party to seek counsel fees against another in a family law action; however, it should be noted that the local courts do not readily grant such awards.

Counsel Fees in Divorce Matters

In a divorce matter, there are several statutory provisions in the Divorce Code permitting the collection of interim attorneys’ fees and costs from an opposing party. For example, interim counsel fees and costs may be granted “… [u]pon the request of either party and after a hearing, the court may order … reasonable counsel fees, costs and expenses and may make a temporary order necessary to protect the interest of the parties pending final disposition of matters….” (See 23 Pa. C.S. § 3323(c)). Interim counsel fees may also be awarded “…to the party in whose favor the order or decree shall be entered or may order that each party shall pay their own costs or may order that costs be divided equitably as it shall appear just and reasonable.” (See 23 Pa. C.S. § 3323(e)).  Furthermore, interim counsel fees may be sought“[i]n proper cases, upon petition, the court may allow a spouse … reasonable counsel fees and expenses. Reasonable counsel fees and expenses may be allowed pendente lite…..” (See 23 Pa. C.S. § 3702))

In the event a party to a divorce fails to comply with a Court Order for equitable distribution, alimony or alimony pendente lite, counsel fees and costs can also be sought against them. See 23 Pa.C.S. § 3323(b), 23 Pa.C.S. § 3502(e)(7) and 23 Pa.C.S. § 3703(7).
The above provisions are interpreted broadly by the Courts and can be used by a dependent or aggrieved spouse to not only seek attorneys’ fees and costs but also to seek funds to pay for experts such as business evaluators and real estate appraisers.
To be successful in a claim for counsel fees, a party usually must show that they are financially unable to pay their own fees. Pennsylvania case law explains that an award of attorneys’ fees is typically awarded in a divorce matter to “level the playing field” financially between parties.

Counsel Fees in Child Support Matters

In child support matters, the Court may (but is not obligated to) require an obligor to pay counsel fees, filing fees, necessary travel and more incurred by an oblige “[i]f the obligee prevails in a proceeding to establish paternity or to obtain a support order….” (See 23 Pa.C.S. § 4351(a)). If a fair or reasonable defense is raised by an obligor to the entry or amount of support order, it is unlikely that they would be required to pay the obligee’s counsel fees.

Counsel Fees in Discovery Matters

If a party fails to comply with a discovery request (typically a Request for Production of Documents or Interrogatories in a divorce matter or complex support matter), the party seeking the discovery will file a Motion to Compel. Once the Court enters an Order on the Motion to Compel requiring compliance, that Order becomes enforceable. Should the party against whom discovery is sought continue to fail to appropriately answer the discovery request, the Pennsylvania Rules of Civil Procedure provide that the party seeking discovery may file a Motion for Discovery Sanctions seeking, among other things, reasonable counsel fees. (See Pa. R.C.P. 4019(g)(1))

Counsel Fees Generally Pursuant to the Judicial Code

Under 42 Pa. C.S. § 2503 an award of counsel fees may be granted as follows:

  • “…as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of the matter … “
  • “…because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.”

Pennsylvania case-law must be carefully examined to determine whether a participant’s conduct rises to the egregious levels contemplated by the Judicial Code as to award attorneys’ fees to the other party.

Counsel Fees in Custody Matters

It is most difficult and rare to be successful in obtaining a counsel fee award against another party in a custody matter.

In the event there is a dispute over the appropriate custody jurisdiction, counsel fees shall be awarded unless there is a finding that such an award is inappropriate. (See 23 Pa. C.S. § 5452)

Even when there is contempt of a custody order or agreement, counsel fees are not typically assessed against the non-complying spouse. (See Pa. R.C.P. 1915.12)

Conclusion

There are many opportunities to seek fees against your opposing party in family law matters; however, the courts look at such requests on a case by case basis. The fee awards contemplated by the legislature in these family law matters are not to be assessed as punishment against a party but rather to promote equity or to encourage future compliance with court orders.

It is important to discuss the merits of your request for attorneys’ fees with a family law attorney.

By: Kelley Menzano Fazzini and Jerry L. Shoemaker, Jr.Gerald ShoemakerKelley Menzano

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