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The Settled and New Ways to Obtain Attorneys Fee in Divorce Litigation

As a general rule, each side pays their own legal fees under the American system of law. In divorce, paternity, and post-divorce litigation there are unique provisions not found in other civil law whereby attorneys fees may be awarded. They are not common, but the subject of this blog post.

The first and newly decided way attorneys fees may be awarded is through divorce cases that are settled by domestic arbitration. In an October 2016 case, the Indiana Supreme Court decided that under the Family Law Arbitration Act a family law arbitration has broad discretion to award attorneys fees in deciding domestic cases outside of court.1 Family law arbitration is a relatively new way to resolve disputes outside of court but subject to judicial review.

The second way is not thought of as much, perhaps because the concept is objectionable to most parties. However, the parties may agree to one paying all or some of the attorneys fees of the other party during the litigation.

Perhaps the third is the most common basis for an attorney fee award in domestic litigation. This is where there is a significant disparity in income between the parties. A high income earner versus a stay at home parent is likely to have to pay some legal fees.

The fourth and final provision is for bad faith of various types in litigation, such as dragging the proceeding on causing it to cost more.

While overall a large attorney fee is rare, the trial courts and now domestic arbitrators are given great discretion in domestic cases to be fair and equitable. We hope this blog post helps you to be a more informed legal consumer. If so, it has met it goal. This is not a solicitation for specific legal services or legal advice. Ciyou & Dixon, P.C. advocates practice through the State of Indiana.

  1. Masters v. Masters, ___ N.E.3d ___ (2015).
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