In Georgia, the short answer is maybe. Under Georgia Code, a judge may grant attorney's fees at any time over the course of litigation as it pertains to certain domestic relations matters. That means fees can be assessed during a temporary hearing and/or at a final hearing. Let's discuss divorce first. A party may be granted attorney's fees for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and/or child visitation rights. Now that's a mouth full.
It's important to note that the granting of attorney's fees in a divorce falls squarely within the sound discretion of the court. Meaning, the judge can choose to grant it or not. And the central factor in making such a determination is generally the financial circumstances and needs of the parties to the case.
Divorce cases and cases sounding in divorce are not the only pathway to attorney's fees in Georgia. As of this publication there are varying sections of the Georgia Code which permit the granting of attorney's fees, costs and expenses associated with litigation for the modification of child support or child custody actions. Fees may also be granted in some family violence cases, Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) cases, and in some instances paternity cases. For example, in a modification of child support case attorney's fees may be awarded where a custodial parent prevails in an upward modification of child support based upon the noncustodial parent's failure and unwillingness to be available to exercise court ordered visitation.
But attorney's fees are not the only fees a court may award a party in domestic relations cases. It's true, in some child custody cases a judge may award attorney's fees but he or she may also award other fees associated with litigation like the cost of hiring an expert witness, or the costs or fees associated with retaining a guardian ad litem just to name a few.
Sometimes however, a jury or judge may award fees based solely on the conduct of the parties. One such instance is where the defendant has acted in bad faith, been stubbornly litigious or caused the plaintiff unnecessary trouble and expense. Fees may also be awarded where the court finds that a party has brought or defended an action that lacked substantial justification caused delay, was brought for the purpose of harassment or to unnecessarily expand the proceedings. Under Georgia Code, fees in these instances must either be specifically plead and/or requested in a prayer for relief or memorialized via a motion depending upon the conduct.
Written by Genghis X. Shakhan