Our Charleston divorce lawyers run into situations where a client is ordered to pay attorney’s fees to the other party. In South Carolina, the family court is supposed to looks at 4 factors in determining whether to award fees to one party: (1) each party’s ability to pay his or her own fees, (2) the respective financial condition of each party, and (3) the effect of the fee on each party’s standard of living, and (4) the beneficial results obtained by the attorney. (For a full discussion of these factors, click here to read our article on Awards of Attorney’s Fees in South Carolina Family Court.) Unfortunately, it isn’t uncommon for the court to overlook the financial ability of a party to pay court-ordered attorneys fees. If the family court makes a mistake and decides to order a party attorney’s fees to the other side that the party can’t realistically afford, then the results can be financially devastating.
Ability to Pay is An Essential Factor for Awarding Attorney’s Fees in South Carolina Family Court
In South Carolina, a party’s ability to pay is an “essential” factor in determining an award of attorney’s fees. In 2001, the South Carolina Supreme Court overturned an award of fees to a husband that represented 16% of the wife’s annual gross income. In 2009, the South Carolina Court of Appeals wrote that it would be “very concerned” by an award of attorney’s fees representing approximately 40% of a party’s annual income. Nevertheless, some family court judges still award fees without considering a party’s ability to pay.
A Mistake in Attorney’s Fees by the Family Court Can Be Financial Devastating
In a recent case, a Beaufort family court judge ordered a wife to pay $50,000.00 in attorney’s fees to the husband. This $50,000.00 represented a whopping 90% of the wife’s gross annual income of $55,260.00! Fortunately, the South Carolina Court of Appeals reversed this award and sent the case back to family court to make a determination that is more consistent with South Carolina law. Unfortunately, the family court’s decision likely left the wife between a rock and a hard place. On the one hand, if the wife didn’t appeal the court’s decision, then she would be stuck with the decision to pay $50,000.00 to her husband. When the time came to pay, and she couldn’t pay, then the wife would be facing a contempt of court charge. In other words, the wife could have faced a finding of criminal or civil contempt and the possibility of jail for not paying her husband’s fees. (For a full discussion of contempt in family court, click here.) On the other hand, the wife probably incurred more attorney’s fees of her own to appeal the family court judge’s decision. Further, although the appellate court overturned the family court judge, the wife will likely incur even more attorney’s fees going back to the family court for a second decision on how much to pay her ex-husband. Win, lose, or draw, this woman will suffer additional financial hardship because the family court failed to make a realistic determination of how much, if anything, she should pay towards her ex-husband’s fees.