Can I Recover Legal Fees In My Divorce Or Paternity Case?

As with many aspects of the law, it depends. Under what is known as the American Rule, which is commonplace in the United States, each side pays his or her own attorney’s fees in civil litigation unless there is a statute that allows for recovery of attorney’s fees. Fortunately, under the divorce1 and paternity statutes, there are several statutes that allow a court to award attorney’s fees from time to time in a case and order the other party to pay for expenses, such as expert witnesses. This blog covers what you need to know to be awarded legal fees in trial court proceedings.2

In many paternity or divorce cases, one party makes significantly more than the other party. In these cases, it is hard for the under-earning spouse to afford similar litigation and legal work compared to the spouse with superior earning power. Since divorce and paternity cases seek to equitably divide the property (in divorce cases) and/or meet the best interests of the child, having equally matched representation is key for the fair presentation of the case to the judge. Thus, if there is a disparity in earning power, a court, after hearing the relevant evidence, may make an attorney’s fee award.

What evidence do you have to develop with your attorney to present at hearing for a fee award? In most cases, the following is the evidence the court must hear to make an attorney’s fee award:

• The resources of the parties.
• The economic circumstances of the parties.
• The ability of the parties to engage in gainful employment and earn an adequate income.
• Any other factors that are pertinent to the reasonableness of the award.3

This noted, a divorce and paternity court also has the authority to award attorney’s fees if it finds that a party has engaged in a behavior to delay the proceedings or otherwise increase the other party’s legal fees.4 Ultimately, the trial court judge hearing a paternity or divorce case has significant discretion to make and enforce an attorney’s fee award in order to make the litigation fair.

In a small number of cases (and this authority to award attorney’s fees is not limited to divorce or paternity matters) a party may make a motion or advocate a position in court that has no merit under Indiana law. Where this is the case, a trial court may award attorney’s fees and costs to the prevailing party if it finds that the other party brought the action or defense on a claim or defense that is frivolous, unreasonable, and/or groundless or continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable and/or groundless. There are a small number of divorce and paternity cases where this is the case. A skilled attorney may be able to protect your position and recover your attorney’s fees under this statute as well.5

Dixon & Moseley, P.C. advocates handle domestic cases of all types across the state of Indiana. Sometimes the case is such that they seek attorney’s fees and costs for their clients. This blog on the recovery of attorney’s fees is written to assist you in being a more educated legal consumer. Perhaps we are the right counsel to handle your case? This blog was written by Dixon & Moseley, P.C. attorneys and is not intended as legal advice or a solicitation for services. It is an advertisement.

Indiana Code section 35-15-10-1.

It is also possible for the Indiana Court of Appeals or Supreme Court to order attorneys fees if an appeal is deemed to be prosecuted in substantive or procedural bad faith. Indiana Rule of Appellate Procedure 66(E).

Kondamuri v. Kondamuri, 852 N.E.2d 939, 953 (Ind.Ct.App.2006.)

Lewis v. Lewis, 638 N.E.2d 859, 861 (Ind.Ct.App.1994).

Indiana Code section 31-51-1-1(b).