A common question litigants have in family law cases is whether there is a way they can be reimbursed for their attorney’s fees? The answer is somewhat complicated and it depends. In most litigation in the United States, we follow the “American Rule”, which is each side pays its own attorney’s fees. However, in divorce and paternity cases in trial courts and on appeal there are ways a party may recover some or all of his or her attorney’s fees. This blog covers what you need to know about attorney fee awards in divorce and paternity cases.
Perhaps the most common way a trial court can award attorney’s fees is when one of the parties (mom or dad if there are children) has no income or a much lower salary than the opposing party. In these cases, courts want to divide property equitably and decide custody in the children’s best interests. In order to do so, each side needs equally skilled counsels and access to certain resources, which may range from a business valuation to a custody evaluation. Therefore, due to statutes in the divorce and paternity acts, if there is a disparity of income, a family law court can order the other side to pay or reimburse attorney’s fees. In some cases, a litigant delays the process or otherwise uses the legal system in a way that causes the legal fees to increase to limit the opposing side’s ability to fight because of the cost. In these cases, the trial court can also order legal fees for such bad behavior. In rare cases, a party may bring or prosecute a legal case under the family umbrella of litigation that is meritless to bring or pursue. In those cases, there is a statute that allows the recovery of attorney’s fees for frivolous litigation.1
What about an appeal? We have all heard losers of litigation to threaten to take their case to the “Supreme Court” or appeal. While final orders can be appealed, most proceed to the Indiana Court of Appeals, not the Supreme Court. Both these courts can award attorneys fees, but only in rare circumstances.2 Specifically, it is only in cases where the briefing and appeal are permeated with meritless, bad faith, frivolity, harassment, vexatiousness, or purpose of delay the Court of Appeals will award fees.3 There are two categories of bad faith. The first is “procedural” bad faith. In order to prevail on procedural bad faith, the party must flagrantly disregard the form and content requirements of the rules of appellate procedure, omit and/or misstate relevant facts, and/or file a brief written in a manner calculated to require the maximum expenditure of time by both the opposing party and the Court of Appeals. A much narrower category is “substantive” bad faith. To prevail on substantive bad faith, the party must show that the appellant’s contentions and arguments on appeal in their briefs are utterly devoid of all plausibility. In other words, there is no legal or law (statutes or cases) position to support the appeal. The Court of Appeals and/or Supreme Court rarely award such fees because the standard is high and these courts do not want to deprive any party of their right to appeal or discourage future parties from appealing for fear of the risk of appellate fees.
This may leave you thinking—if you are the spouse who earns much less—there is no way to afford an appeal. This is not the case. The trial court may make a preliminary (or advance) attorney fee award where there is a disparity of income so that lower-earning spouse can take or defend an appeal. The trial court may also award appellate attorney fees in this case after the appeal is decided. Ultimately, a trial court and/or the Indiana Appellate Courts may order fees to ensure fundamental fairness in domestic cases. Is this your case? Discuss it with your counsel. Indiana family law courts are cognizant of your rights and want everyone to have their fair day in court.
This blog was written by attorneys at Ciyou & Dixon, P.C. The firm handles interlocutory appeals and appeals from the final order from all counties in Indiana. This blog is written for general educational purposes only. It is not intended to provide legal advice. It is not a solicitation for services. It is an advertisement.
- Indiana Code 34-52-1-1.
- Indiana Appellate Rule 66(E).
- Picket Fence Prop. Co. v. Davis, 109 N.E.1021 (Ind.Ct.App.2018).