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Recovery of Attorney's Fees in Family Law Cases

By Sarah Payne

After the merits of a case have been determined, one of the biggest remaining issues for a family law client is whether a court will rule that all or a portion of the client's attorney's fees must be paid for by the opposing party. Traditionally, an award of attorney's fees is submitted to the trial court's discretion, and the judge may award such fees as equity and justice require. [1] However, while the trial court has the discretion to award attorney's fees,[2] the fees must be reasonable under the circumstances.[3] In order to award fees, there must be "evidence of time expended and services rendered is proper basis upon which to fix an award."

Importantly, to the victor do not always go the spoils. Virginia follows the so-called American Rule, which provides that ordinarily each party bears the burden of their own attorney's fees.[4] Under Virginia law, the loser does not "pay all."[5]

Recently, the Virginia Court of Appeals affirmed an award of attorney's fees to a Father after he filed a legal action when the parties could not agree on the date when the Father would resume custody of the parties' son so that he could take him to boarding school.[6] The trial court ruled in favor of the Father, noted that the Mother's responsive motion was unfounded, and awarded attorney's fees and costs to the Father.

In another recent decision, the Court of Appeals reversed an award of attorney's fees in a post-divorce modification of spousal support proceeding where the parties' property settlement agreement did not provide for it.[7] The agreement provided for attorney's fees to enforce compliance with a provision of the agreement.[8] Since the agreement did not address a later modification of the agreement and who would bear the cost of attorney's fees, the court deferred to the general principle that each party pays their own fees.[9]

Furthermore, although it is within the trial court's discretion to award attorney's fees, the Court of Appeals reviews an award of fees under an abuse of discretion standard. Last January, the Court of Appeals highlighted the importance of a trial court identifying the basis for the award of attorney's fees. The court reversed an award of fees where the trial court had failed to identify a basis for which the fees were reasonably awarded under the circumstances.[10] That case involved a post-decree action to continue child support payments filed by the Mother.[11] The Mother prevailed in the trial court and was awarded 75% of her fees.[12] The Court of Appeals reversed the award of attorney's fees because the trial court, nor Mother's counsel, "referenced any specific circumstances of the parties or equities of the entire case that justified" the award.[13]

In summary, whether and to what extent legal fees will be awarded remain uncertain and subject to a variety of factors and circumstances.

[1] Taylor v. Taylor, 27 Va. App. 209, 215 91998); Mayer v. Mayer, 62 Va. App. 713, 733-734 (2014), Va. Code § 20-99(6).

[2] Taylor v. Taylor, 27 Va. App. 209, 215 (1998).

[3] Id.

[4] Mayer, 62 Va. App. at 733-734.

[5] Id.

[6] Rogers v. Rogers, 2014 WL 2978222, *2 (Va. Ct. App. 2014).

[7] Slye v. Sley, 2014 WL 457738, *3 (Va. Ct. App. 2014).

[8] Id.

[9] Id.

[10] Mayer, 62 Va. App. at 733-734.

[11] Id. at 717.

[12] Id.

[13] Id. at 734.

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