When Does the Other Side Pay Your Attorney Fees in a Family Law Case?

March 21, 2017

Maryland courts generally follow the “American Rule” that the prevailing party may not recover attorney fees from the losing party, but that rule doesn’t apply to family law cases.  Maryland statutes and rules allow the judge to order one party to pay the other party’s attorney fees in certain instances.  In spite of these statutes and rules, Maryland judges often do not award attorney fees in family law matters. 

What if Dad sues Mom for interfering with his time with their child?  Family Law Article, Section 9-105 states that the court may assess costs or counsel fees in visitation matters against a party who has unjustifiably denied or interfered with the visitation rights of the other party.  So, if Dad proves to the court that Mom purposely has gotten in the way of his time with their child without good reason, Mom might have to pay Dad’s attorney fees.

There are other family law statutes that authorize the award of attorney fees.  In cases involving issues of divorce, custody, child support, marital property and alimony, the judge has the discretion to award attorney fees.

The judge must consider: (a) whether there was substantial justification for prosecuting or defending the case; and (b) the financial resources and financial needs of both parties.  Since normally in a family law case each party has substantial justification for prosecuting or defending the case, whether and to what extent to award attorney fees typically comes down to the financial resources and financial needs of the parties.

There are some other factors that come in to play.  If the behavior of one party during the litigation process is obstructionist, (e.g., he or she has intentionally refused to produce documents properly requested by the other party, forcing the attorney to jump through hoops to get what is needed for trial leading to higher attorney fees), this could improve the chances of being granted an attorney fee award.

The attorney representing the party seeking fees must remember to provide the judge with sufficient documentation of the fees incurred.  Specific examples are:

  1. Submit in to evidence detailed attorney invoices that outline the work that was done by the attorney. The court has to be convinced that the cost was “reasonable” and that the services were “necessary”; and
  2. If the opposing party failed to respond to discovery requests and there was a court order that reserved the issue of the award of attorney fees for trial, do not forget to bring that up at the conclusion of the case.  It’s already been reserved for the court to address. 

It is important to note, that an attorney fee award is never a “slam dunk.”  If, for example, your client has been a stay-at-home mom for the last 20 years, took care of the household, and borrowed money to pay her attorney fees (or has not paid them yet), the chances of the court awarding attorney fees are much greater, but it’s still not a sure thing.

Questions on awarding attorney fees in Maryland? Reach out to attorney Carol G. Cooper via email at ccooper@adelberg.com or by phone at 410-986-0852.

Note on the Author: Carol G. Cooper presented on this topic to the Family Law Committee of the Baltimore City Bar Association in January 2017.  Ms. Cooper represents clients in matters related to divorce, custody, visitation, child support, alimony, pre-nuptial agreements, post-nuptial agreements, adoption and other civil litigation.

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