A common statement or question from litigants relates to obtaining attorney’s fees for the expenses for their attorney in general civil litigation and divorce and paternity cases. Most of America’s laws are based on English common law. Under common law, the prevailing (or winning) party was entitled to receive an award of fees from the loser. In our society, this would be a difficult rule to apply as some cases have multiple parties and/or legal issues and a party may “win” some and “lose” some legal issues.
For this and many other reasons, America rejected this legal concept and each side pays his or her own fees. However, to ensure due process and fundamental fairness, certain statutes and, constitutional rights allow recovery of attorney’s fees.
In general, civil litigation between a plaintiff and defendant, there are a few statutes based on public policy that allow recovery of attorney’s fees, such as for certain crime victims who may recover fees in civil litigation from torts that occurred and harmed them during a criminal act. This and few other statutory provisions permit recovery of attorney’s fees in civil litigation. Is there a provision that applies to your case?
This noted, many contractual provisions, such as a lease of a car or home, have provisions that the party to the contract who “won” the litigation could recover fees. There is a constitutional right to contract and the parties to any contract may agree in the event of litigation, the prevailing party may seek fees from the trial court, so long as they are reasonable. If you are suing or being sued in contract, does your contract allow for fee recovery?
Perhaps the most common civil litigation where attorney’s fees may be recovered and awarded is in paternity and divorce cases. Under the Paternity Act and the Divorce Act, the Legislature has passed laws to allow a party to seek fees in a significant departure from the American rule. These statutory provisions do not require a party to “win”. Instead, they are equitable provisions to allow a trial court to accomplish fairness. For instance, attorney’s fees are commonly awarded where there is a significant difference in incomes between the parties, such as to a stay-at-home mom from the husband who is the “bread winner”.
Because there are so many factual situations in paternity and divorce cases (unlike other civil litigation) where it is “fair” to award attorney’s fees, the judge has wide discretion to hear evidence and make such an award. There is little difference between a divorce and paternity court’s discretionary ability to award fees. Finally, there may be an attorney fee award both as a preliminary matter—to get a party’s fees paid to prosecute a divorce—and at the completion of the divorce.
With a case that moves forward on appeal, attorney’s fees may be awarded in three situations. The first is where the contract (if that is the basis of the litigation) has a provision for legal fees. Prevailing on appeal on some or all the issues may trigger an order by the Court of Appeals to awarded fees by the trial court; these must be reasonable. In divorce and paternity cases, a trial court may award appellate fees normally based on big differences in incomes. Finally, the Court of Appeals may order fees for procedural or substantive bad faith in bringing and prosecuting appeals.
Ultimately, the take-away from this blog is in most cases a party to litigation pays his or her own legal fees in bringing and litigating a case. However, by certain narrow statutes in civil litigation and for many good reasons in paternity and divorce cases, a trial court may award a party attorney’s fees. This may be a key question to ask your attorney in any litigation.
Dixon & Moseley, P.C. attorneys handle a wide array civil ligation cases and all types of divorce and paternity cases throughout the state where there may be the ability to recover fees; in addition, the firm handles criminal and civil appeals of all types from all final orders of Indiana trial courts. This blog is written for general informational purposes only and is not intended as legal advice; nor is it a solicitation for legal services. It is an advertisement.