Are Attorney's Fees Recoverable When Enforcing a Post Divorce Modification?
September 8, 2015
Once a divorce is finished, most people assume that they are done with going to court. However, if there were issues of spousal support, child support, child custody, visitation, or certain property issues, you may have found yourself back in the courtroom for a post-divorce modification. A post-divorce modification is a change to the original divorce terms, typically because there has been a change in situations since the original divorce was issued. Going to court can get expensive. Who is responsible for paying for attorney's fees in a post-divorce modification enforcement case?
How family law is different
The general rule is that attorney's fees are to be paid by the person who hires the attorney. That means that typically each person in a case pays for his or her own attorney. Family law cases can be different however, particularly in enforcement situations. If you are filing to enforce a modification, you are filing a motion that indicates the other party is not cooperating with a court order. If the court agrees that the other party is not in compliance, the judge may hold the other person in contempt.
A finding of contempt means that the judge believes that the person in contempt willfully chose to ignore a court order. This is a finding that indicates the judge believes that the person in contempt is at fault. In addition to penalties imposed by the court, such as monetary sanctions, the court may find it appropriate to order the party in contempt to pay the other party's attorney's fees. This would be due to fault on the part of one party. They would be obligated to pay attorney's fees due to their own fault in causing the attorney to be needed again.
Ability to pay
Another reason a court may order one party to pay another's attorney's fees in a post-divorce modification enforcement action is due to one party's ability to pay. If one person has significantly more income than the other, the judge may believe it is fair for he or she to pay the other's attorney's fees to allow for a more even playing field.
No matter if due to fault or ability to pay, attorney's fees are not guaranteed in any post-decree enforcement case. Even if the judge chooses to award attorney's fees, he or she may only order the other party to pay a portion of those fees. If the other party does not pay the ordered fees, your attorney may still hold you responsible for the costs.