Counsel fees, also known as legal fees or lawyer fees, can build up considerably during the course of a lawsuit. Often, the parties on each side of a dispute are not on equal financial grounds. These kind of financial imbalances are fairly common in marriages. In divorce litigation, if one spouse is in a better financial position than the other, that enables him or her to spend more on legal assistance, and the outcome of any litigation may seem unfair.

There are specific laws and rules designed to even the odds in cases like these, and courts are frequently called upon to implement them in domestic legal disputes. If the court decides that one party in a case must help cover the costs and fees of the other party’s lawyer, the judge might issue an order that addresses the specific payment of some or all of those legal fees. This order is called a counsel fee award.

Eligibility

Before a court will consider whether to award counsel fees, there must be an existing law or rule in place that gives the judge the authority to make this decision. Several statutes and rules authorize courts to issue counsel fee awards but, by their terms, the awards are not guaranteed. Generally speaking, they give the court the discretion to award counsel fees. This means that judges may issue them, but are not required to do so. As a result, a disadvantaged party to a legal proceeding should present a convincing argument to prove to the court that counsel fees are appropriate based on the facts of the case.

Divorce

The most common kinds of cases where fees are awarded include divorce proceedings where one party is left in a far better financial situation than the other, such as when one party has a much higher income or future earning capacity. However, even if there is a substantial difference between the parties’ earnings, it is not the only factor that a judge will consider. For instance, if one party is able to earn more money, but the other party will be left with considerable assets, the court will be less likely to award counsel fees.

Support

Counsel fee awards may be appropriate in some child support cases, but are generally not issued without compelling reasons. For example, while Pennsylvania has a specific law that allows for counsel fee awards when a support order is obtained, courts generally rely on the behavior of the parties as a measure of whether to award any counsel fees. Depending on the severity of the circumstances, the court might order one party to pay some (and, less frequently, all) of the other party’s legal fees for the child support proceedings.

Child Custody

Pennsylvania also has a statute that allows for “necessary and reasonable” counsel fee awards for the enforcement of child custody orders. This means that in some custody cases a court has the authority to make one party pay some or all of the legal fees incurred by the other party during the course of the custody proceedings. While the law clearly authorizes counsel fee awards in these cases, courts focus intently on whether they are, in fact, necessary and whether awarding fees would be reasonable.

Additional Factors to Consider

There are additional factors, beyond those listed above, that courts may consider when deciding whether to award counsel fees. The behavior of the parties plays a very important role in a court’s decision to award counsel fees. For example, Pennsylvania law allows for counsel fee awards in any kind of legal dispute if one party is behaving improperly during the litigation. If a court finds a party’s behavior to be “obdurate, vexatious, repetitive or in bad faith,” it can shift some or all of the costs of the litigation to that party.

If one party repeatedly insists on pursuing litigation when there are less expensive, more effective means of resolving an issue, a court may consider that party’s behavior as a basis to award counsel fees to the other side. If one spouse uses the courts purely for the sake of giving the other spouse a hard time and is intent on forcing him or her to endure high legal costs, the court may consider that a reason to order counsel fees. Basing a counsel fee award on a party’s misconduct during the litigation is entirely different than shifting fees out of financial necessity; but it may be appropriate in certain circumstances.

In terms of financial necessity, a party may have to demonstrate an actual inability to pay some or all of his or her attorney’s fees in order to successfully obtain a counsel fee award. Depending on the nature of the case, the court may require extensive documentation of a party’s income and assets before making a decision to award counsel fees. In other cases, the court may already have access to this information. Although a person does not need to be destitute to obtain a counsel fee award, an award is more likely when there is a greater difference between the financial positions of the parties.

Practically Speaking

Counsel fees are just one of the potential costs in a legal proceeding. There may be other considerations, separate from attorney fees, such as the costs of alimony and child support payments, court filing fees, time spent away from work, travel expenses, and even child care. Counsel fee awards may only satisfy those costs that are reasonably related to the provision of a lawyer’s services. Often, when a court awards counsel fees, it may choose to wait until the conclusion of all of the legal proceedings instead of awarding fees while the proceedings are ongoing.