As divorce lawyers in Charleston, South Carolina, we often deal with claims for legal fees in family court. South Carolina’s family court judges have the ability to award attorney’s fees to one party in most family court cases. Whether the issues are custody, divorce, contempt, or nearly anything else, attorney’s fees are on the table. What our clients need to know is whether they are either potentially entitled to attorney’s fees or whether they are at risk of having to pay the other side’s fees. In this article, we cover how the family court decides to award attorney’s fees, how much fees may be awarded to either spouse, and attorney’s fees awarded at temporary hearings.
How Does a Judge Decide to Award Attorney’s Fees in South Carolina?
In South Carolina, the family court 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.
Because of the first 3 “financial” factors, if one spouse earns a six-figure income, and the other spouse quits working to raise children, then the breadwinner is at serious risk to have to pay the other side’s fees. There is no bright-line rule, and the judge decides whether to make an award on a case-by-case basis. Also, just because there is a breadwinner, it does not mean that person will have to pay all of the fees in every case. If there are significant marital assets, then the judge may decide that the homemaker can pay his or her fees out of those assets.
The 4th factor causes the judge to look at the result of the case when determining whether to make the award. For example, if a husband is claiming his wife cheated and should be barred from receiving alimony, that husband could incur significant attorney’s fees trying to prove the adultery at trial. If the judge finds the husband did not meet his burden of proof, then the judge might not award the husband any of his legal fees.
“Marital fault” is not a factor under our case law, but our experience it that a judge is more likely to find a way to award fees against a spouse whose bad conduct led to the breakdown of the marriage and less likely to give fees to a spouse whose conduct led to the breakdown of the marriage.
We do find that in Rules to Show Cause, where a party is facing contempt of court, a family court judge is more inclined to award fees to the party bring the action for contempt if the judge actually finds the other party in contempt.
How Does a Judge Decide How Much Attorney’s Fees Should be Awarded in South Carolina?
If the court decides to award fees, the court must then decide what is a “reasonable fee.” Again, our case law provides factors for a court to consider, which are:
- The nature, extent, and difficulty of the case;
- The time necessarily devoted to the case;
- The professional standing of counsel;
- The contingency of compensation;
- Beneficial results obtained; and
- Customary legal fees for similar services.
To summarize these factors, the family court often reviews the complexity of the case, how much of the money spent on the lawyer was necessary, and whether that lawyer’s abilities and experience warrant the hourly rate that the lawyer is charging. Hourly rates are almost always charged in domestic law cases for two main reasons: (1) it is rarely predictable how much time will be required so lawyers generally do not charge flat fees and (2) lawyers are ethically prohibited from charging contingency fees in these types of cases except for the collection of past-due child support and alimony. Overall, the judges have a fair amount of discretion on whether to award fees and how much they can award.
Can the Family Court Award Attorney’s Fees at a Temporary Hearing in South Carolina?
The award of fees does not always have to wait until the final hearing or trial. At a temporary hearing, the judge can make a partial award of attorney’s fees. The judge can also require a breadwinner to advance a certain amount of money to a spouse who has no or much less income in order to proceed through the case.
What if You Don’t Have Enough Money to Pay Your Ex’s Attorney’s Fees?
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 an Award of Attorney’s Fees Can Be Devastating
In one 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.
Thoughts On Our Clients’ Legal Fees
We’re not the most expensive lawyers in town, but we’re not the cheapest either. In every case, it’s important that our clients have an idea of what things might cost before they get started. We take pride in saying that we are always very mindful of our client’s situations and we don’t fight battles that will only serve to waste a client’s money. Also, when we get to court, we do whatever we can to recover your attorney’s fees from your spouse if it is at all possible. When we represent the “breadwinner,” we do what we can to reduce the risk of a fee award and to keep not only our fees down but those of opposing counsel.
