American Rule

• The general American rule in our country's legal system is that each party pays for its own fees for defending a lawsuit or filing a lawsuit. Compared with the "English Rule," where the losing party pays for both the loser's fees and the winner's fees, prevailing parties in the United States cannot typically obtain an award for attorneys' fees.
  
  

Frivolous Claims and Post-Divorce Issues

• In post-divorce proceedings, judges are more inclined to award divorce fees to the prevailing party if the court decides the suit was frivolous and a waste of judicial resources. Post-divorce cases usually involve one spouse's request to enforce a specific provision in a settlement agreement. Show cause motions require the party allegedly at fault to show cause as to why he did not comply with the binding settlement agreement placing him in contempt of court. To obtain an award for legal expenses, the attorney filing the original motion must request the award from the court. If the spouse does not request an award for legal fees, then courts will not typically award them.
  
  

Statutes or Contracts

• A few state statutes may require one party to receive an award for attorneys' fees if the party ultimately prevails in court. Additionally, most divorce agreements contain provisions preserving a spouse's rights to seek attorneys' fees if there is a subsequent disagreement regarding the terms of the property settlement agreement or when the parties incorporate a provision requiring the losing side to pay their expenses.
  
  

Exceptions to Contractual Provisions

• Even when divorce agreements contain a provision requiring the losing side to pay post-divorce legal fees, courts may overturn that requirement if the losing party can show that the divorce agreement is unenforceable because it was fraudulently made, involved duress or simply unconscionable and was not an arms'-length negotiation. However, if the court finds that the fees are reasonable and not exorbitant and the contract was made between two spouses with an equal amount of bargaining power between them, then the court is more likely to enforce the provision and award legal fees to the prevailing spouse.
  
  

Equity Concerns

• Judges may also award attorneys' fees to a spouse who requests payment of fees if the judge believes that not awarding them would lead to an unfair result. Judges in these cases use equity or fairness as an overriding consideration, especially if the judge views the filing of the lawsuit as frivolous and was filed in bad faith.
  
  

Considerations

• Since family laws can frequently change, you should not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your jurisdiction.