Contested divorces—particularly those requiring multiple days of trial—are expensive. Under the “American Rule,” litigants are generally responsible for paying their own lawyers, without contribution from the opposing side.
However, this is not always the case in divorces. Understanding how and when attorney’s fees may be recoverable at the outset of a case can help litigants position themselves to potentially recover fees at the end of the case.
When it comes to awarding attorney’s fees in Virginia, it’s important to know that circuit courts hold broad discretion in that decision:
In any suit for divorce, the court in which the suit is instituted or pending, when either party to the proceedings so requests, shall provide in its decree … counsel fees and other costs, if in the judgment of the court any and all … should be decreed.
Va. Code § 20-79(b) (support actions); see also Va. Code § 20-99(b) (divorce actions).
In divorce cases, an award of attorney’s fees to either party is discretionary, based upon consideration of the circumstances and equities of the entire case. Gamer v. Gamer, 16 Va. App. 335 (1993).
But what exactly does “the circumstances and equities of the entire case” mean? While there is no specific statutory guidance or controlling case law on the exact factors a court must follow, the Fairfax County Circuit Court, in Dwoskin v. Dwoskin, 2021 Va. Cir. LEXIS 40, enumerated a non-exhaustive list of factors that courts often consider in exercising their broad discretion to award attorney’s fees:
The Financial Position of the Parties
This factor generally looks to address the fact that in divorces, one spouse might be significantly wealthier than the other spouse. As such, the relative financial abilities are often considered as factors in deciding an award of attorney’s fees, but are not exclusively determinative of whether an award should be made. Wills v. Wills, 72 Va. App. 743 (2021). If one spouse has access to far more financial resources than the other spouse, that is a significant factor the court will generally consider.
Whether a Party Unnecessarily Increased the Cost of Litigation to the Other
But what about when one litigant made the divorce significantly more expensive? For example, what about a litigant who refused to provide discovery and/or did not participate in settlement negotiations in good faith? This is something the court can—and often does—consider as well. For instance, in a case where the wife caused unreasonable and repeated delays due to her conduct, the court found it appropriate that she pay a portion of the husband’s fees. Northcutt v. Northcutt, 39 Va. App. 192 (2002).
Fault in the Dissolution of the Marriage
A court may consider a party’s degree of fault in bringing about the dissolution of the marriage in awarding fees. Gilman v. Gilman, 32 Va. App. 104 (2000). Thus, if the marriage fell apart largely because of the actions of one spouse, that is something the court can and often does consider. However, like the other factors, this is not mandatory, and a court may disregard fault if the court otherwise considered the parties’ circumstances. West v. West, 53 Va. App. 125 (2008).
Public Policy Considerations
This factor looks to the fact that all litigants have the option of pursuing the litigation strategy they wish to pursue, but public policy favors litigants who engage in a cost-benefit analysis first. In other words, in deciding whether to shift fees, the court can—and often does—consider whether a party acted reasonably in balancing the likely benefit of litigation against its costs, or instead chose to litigate every issue, no matter how minor, rather than pursuing less expensive alternatives.
Other Factors Necessary for a Reasonableness Ruling Under All the Circumstances Revealed by the Record
Every family law case is unique, and this is what this factor attempts to capture. In determining whether to shift fees, the court will ultimately look to the whole case and the totality of the circumstances.
If you are involved in a contested divorce and wish to maximize your opportunity to recover attorney’s fees, be sure to discuss your options with a knowledgeable family law attorney in your area. The family lawyers at Livesay & Myers, P.C. have extensive experience with every aspect of divorce litigation—and with how Northern Virginia courts handle requests for attorney’s fees. Contact us to schedule a consultation today.