Attorney Fee Award (Or Not) That Is The Question

When the inquiry is made about requesting the court to award attorney fees in domestic relations cases, such as a dissolution, modification of custody, paternity matter, modification of child support, or contempt issue, or protective order the standard answer is, “We can ask”.

The American standard is that each party pays their own attorney fees, unless there is a contract or statute that allows for an award of attorney fees. In domestic relations matters there are statutes that allow the award of attorney fees, but that is just the first hurdle. Truly the determination of an attorney fee award is solidly at the Court’s discretion. The answer can also fluctuate from county to county and judge to judge. Further, the amount awarded is at the discretion of the court and based upon the reasonableness of the fee. The court’s discretion can vary widely and there is no guarantee that can be given of “winning” an attorney fee award or the amount.

There are statutes that allow a court to order a party to pay attorney fees for maintaining or defending an action. For instance Indiana Code Section 31-15-10-1, applies to the award of attorney fees in any action in dissolution proceedings.

Additionally, there is case law that provides factors which the court must consider as follows:

the resources of the parties

their economic condition

the ability of the parties to engage in gainful employment and to earn adequate income, and

other factors that bear on the reasonableness of the award

These factors can be found in the case entitled Hartley v. Hartley, 862 N.E.2d 274 (Ind. Ct. App. 2007).

However, even if you clear the factors that must be considered, you must still rely upon the discretion of the court, as the court even if there is disparity of income, the court is not required to award fees. This was a ruling of the Indiana Court of Appeals in Russell v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied.

This blog post is written by attorneys at Dixon & Moseley, P.C. and is for general educational purposes only. It is not legal advice, or solicitation for legal services. Dixon & Moseley, P.C. attorneys handle domestic relations, paternity, guardianship, protective order cases and civil appeals from all Indiana state trial courts.