Indiana, like most states, follow the American Rule. This means each side pays for their own attorney’s fees. However, there are provisions under the Paternity and Divorce acts for the court to order one side to pay the other party’s legal fees. To obtain fees, a party has to request them and put on evidence as to why the other side should pay same.
Normally, this award comes at the end of the case when the final order is issued, but the trial court can order a preliminary award of attorney’s fees. To obtain this, a party and his/her counsel has to petition for a preliminary fee award and a preliminary hearing.
Knowing an award of attorney’s fees is unique in American law, many litigants wonder what they must prove to obtain an attorney’s fee award. For the most part, trial courts award legal fees where there is a significant difference in incomes between the party. This is called “disparity of income.” The reason the courts do this with some frequency should be obvious. If one spouse has stayed at home to rear the children and gave up his or her career and other spouse is the family bread winner, he or she is the only one who has income to afford counsel. In domestic cases, because it effectively a partnership, the courts see an attorney’s fee award as a fair way to ensure each spouse has effective counsel during the litigation. This noted, a trial court may award attorney’s fees at any point during the litigation if it determines the other party is delaying or acting in bad faith and this increases the legal fees to properly litigate the case.
In addition, there are specific provision for an award of attorney’s fees that sometimes come into play in domestic litigation. The first is where a party fails to provide discovery (information requested from your counsel from the opposing party to properly prepare the case for trial). If the party is compelled by a court order to provide the discovery, the discovery rules allow for recovery of attorney’s fees related to the attorney time it took to obtain this material. In addition, although rare in domestic cases, a party can be ordered to pay attorney’s fees if it litigated a frivolous action or position or continued to litigate it when it became apparent it was frivolous.
Although rare, a trial court may also award appellate attorney’s fees if an appeal is taken.
The key to obtaining attorney’s fees in most cases is to show the disparity in income between the litigants/parents/spouses and that the unemployed or underemployed litigant cannot hire and retain a competent domestic counsel to handle the case without an attorney’s fee award. The trial court is charged with a just and reasonable division of the marital estate and making a custody decision in the children’s best interests without competent counsel properly present the court with the evidence. Without competent counsel representing both sides the court will not receive this evidence.
Ultimately, if the trial court does award fees, these are subject to interlocutory appeal or appeal of the final order and/or bankruptcy, although bankruptcy is a rare circumstance. Ciyou & Dixon, P.C. attorneys have handled all variations of attorney’s fee awards and can advocate the same for you or defend against such and award, as necessary.
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