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1996 National Legal Research Group, Inc.

No issue strikes the modern American family law lawyer closer to home than the making of attorney's fees awards in domestic cases. A substantial number of divorcing parties lack sufficient funds to pay attorney's fees in advance, and domestic relations practitioners are frequently forced to rely upon the hope that the court will ultimately grant a liberal fees award. All too often, when the litigation is complete, the court makes a smaller fees award than the attorney requested. Because the client's resources are limited, the end result of a reduced fees award is that the attorney receives less than full consideration for the service actually performed for the client. The result is particularly unfair to the practitioner when the court blames the attorney for excessive or improper litigation, and the primary factor driving the litigation was the client's own reluctance to adopt a reasonable position.

The reluctance of some judges to grant reasonable attorney's fees awards lies partly outside the control of the practicing bar. Still, there is much that the practicing attorney can do to ensure that his or her fees requests will be granted as often and as fully as possible. For every case in which the neutral observer is struck by the court's willingness to reduce a fees award for arbitrary reasons, there is another case where the neutral observer is dismayed by the incomplete or unsupported nature of the request for fees. In truth, attorneys and judges must share responsibility for ensuring that reasonable attorney's fees awards are made in domestic relations cases. The best way to put pressure on judges to make better fees awards is for attorneys to fulfill their responsibility to submit well-documented fees requests.


As a general rule, American courts are not permitted to order either party to pay the attorney's fees of the other. This rule has been controversial in recent years and its strength may be slowly weakening, but it is still a bedrock principle of law in every state. Accordingly, an award of attorney's fees is proper only where specifically permitted by statute or court rule.

There are several types of provisions which generally give the court authority to make an award of attorney's fees in a divorce case. The most common of these provisions is a specific statute which allows the court to make an award of attorney's fees in a domestic relations case. "[T]he purpose of an award of counsel fees [under these provisions] is to insure that a financially dependent spouse will be able to maintain or defend against an action for divorce as well as to effectuate economic justice between the parties." Schubert v. Schubert, 398 Pa. Super. 284, 580 A.2d 1351, 1356 (1990). "[E]ven though the parties may not have equal bargaining positions, the more affluent spouse should not be afforded further leverage by reason of inequality of representation during the litigation process." Wyser-Pratte v. Wyser-Pratte, 160 A.D.2d 290, 553 N.Y.S.2d 719, 719-20 (1990). Although the purpose of fees awards is to make equally qualified counsel available to both parties, a spouse need not demonstrate actual impairment of the right to counsel before receiving a fees award. Blake v. Blake, 81 Md. App. 712, 569 A.2d 724 (1990).

The general rules governing awards of attorney's fees under the domestic relations attorney's fees provision are the same in almost all jurisdictions. After considering the relative financial positions of the parties, the court has discretion to order one party to pay all or any part of the attorney's fees of the other. This discretion should be utilized only to the extent that the spouse against whom the award is made is more able to pay the fees than the spouse who receives the award. The award cannot generally exceed the actual amount reasonably charged by the attorney for his or her services. See, e.g., Christian v. Christian, 69 Ill. App. 3d 450, 387 N.E.2d 1254 (1979); Qazi v. Qazi, 546 N.E.2d 866 (Ind. Ct. App. 1989); Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978). The granting or denial of attorney's fees is within the trial court's discretion, and its decision will be reversed on appeal only for clear error. See generally 2 Homer H. Clark, The Law of Domestic Relations in the United States 17.2 (2d ed. 1987).

Burden of Proof. The burden of proof is on the party who asks the court to make an attorney's fees award. See, e.g., In re Douglas, 195 Ill. App. 3d 1053, 552 N.E.2d 1346 (1990); In re Ahmad, 198 Ill. App. 3d 15, 555 N.E.2d 439 (1990).

Other Theories. The great majority of all attorney's fees awards are made under domestic relations attorney's fees provisions. There are, however, several other sources which can be used to support a fees award. First, attorney's fees obligations incurred before the divorce are marital or community debts, and are subject to allocation under the normal rules of property division. SeeCummings v. Cummings, 115 Idaho. 186, 765 P.2d 697 (Ct. App. 1988) (community property); Roosth v. Roosth, 889 S.W.2d 445 (Tex. Ct. App. 1994) (community property); Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988) (equitable distribution).

Second, the courts will enforce antenuptial or separation agreements providing that one party will pay all or part of the other's attorney's fees. See Junken v. Junken, 647 So. 2d 797 (Ala. Civ. App. 1994) (where contract required award, trial court erred by failing to award fees); Bonelli v. Bonelli, 189 A.D.2d 794, 592 N.Y.S.2d 453 (1993); Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995). Note that this principle does not work in reverse, as courts have been reluctant to enforce contractual waivers of attorney's fees. Agreements regarding attorney's fees are therefore similar to agreements regarding child support: contractual reductions are questionable, but contractual increases are enforceable.

Third, a number of states have enacted specific provisions governing attorney's fees in discovery proceedings, custody proceedings, and/or actions to enforce divorce decrees. These provisions differ from traditional domestic relations support provisions in that they do not generally depend upon the parties' respective abilities to pay. See Dalton v. Dalton, 858 S.W.2d 324 (Tenn. Ct. App. 1993) (under specific provision, fees can be awarded in custody or child support matter without regard to parties' ability to pay); Via v. Via, 14 Va. App. 868, 419 S.E.2d 431 (1992) (where statute required attorney's fees where motion to compel discovery is necessitated by one party's conduct, error to deny award); Lyngle v. Lyngle, 831 P.2d 1027 (Utah Ct. App. 1992) (court has discretion to award attorney's fees in enforcement action without considering financial need); cf. In re Parker, 216 Ill. App. 3d 672, 575 N.E.2d 938 (1991) (provision which applies to enforcement actions not applicable in action to vacate divorce judgment). Indeed, some of these provisions even make a fees award mandatory where the spouse seeking enforcement is the prevailing party. See In re Walters, 238 Ill. App. 3d 1086, 604 N.E.2d 432 (1992) (attorney's fees mandatory in successful action to enforce support).

Fourth, the court can also apply any applicable statutes or rules of court allowing imposition of sanctions on parties who make frivolous or bad-faith arguments. See, e.g., In re Pitulla, 202 Ill. App. 3d 103, 559 N.E.2d 819 (1990); Broesus v. Broesus, 82 Md. App. 183, 570 A.2d 874 (1990); In re Greenlee, 65 Wash. App. 703, 829 P.2d 1120 (1992). But cf. Moffitt v. Moffitt, 813 P.2d 674 (Alaska 1991) (under specific Alaska statute, misconduct is not an independent basis for awarding attorney's fees). These provisions are further discussed in part III below.


The single most important factor in awarding attorney's fees in domestic cases is the parties' relative abilities to pay. If all other factors are equal, a spouse should receive a fees award only if (1) that spouse lacks the ability to pay his or her own fees, and (2) the other spouse has that ability. See, e.g., In re Ziemer, 189 Ill. App. 3d 966, 546 N.E.2d 229 (1989).

Ability to pay is not present, however, merely because the total amount of attorney's fees is less than the incurring spouse's net worth. "It is not necessary that the spouse seeking fees be destitute; it is sufficient that the payment would exhaust his estate or strip him of his means of support or undermine his economic stability." In re Ziemer, 189 Ill. App. 3d 966, 546 N.E.2d 229, 230 (1989). Thus, the receiving spouse need not prove indigency in order to receive a fees award.

The question is instead whether the receiving spouse can pay the fees while retaining a reasonable standard of living. If paying the fees would cause an unreasonable drop in a spouse's living standard, the ability-to-pay test is satisfied. The definition of a reasonable standard of living is a question of fact, but the marital standard of living is frequently found to be reasonable. See Henley v. Henley, 796 S.W.2d 73 (Mo. Ct. App. 1990) (awarding fees to wife who received $49,000 in property division; incomes were substantially unequal, and marital standard of living had been high). There are also a number of decisions stating a general rule that one spouse should not be forced to pay attorney's fees from assets if the other spouse can pay them from income. See Hanaway v. Hanaway, 208 Mich. App. 278, 527 N.W.2d 792 (1995). There are obviously extreme situations in which this principle might not apply. See L.C.S. v. S.A.S., 19 Va. App. 709, 453 S.E.2d 580 (1995) (where husband was incarcerated and had no income, proper to award wife attorney's fees based upon his assets alone).

It is important to note that the court must consider both parties' financial situations. Where one spouse has serious financial needs but the other party cannot afford to help meet them, it is not error to refuse a request for fees. See Munns v. Munns, 790 P.2d 116 (Utah Ct. App. 1990).

A finding of ability or inability to pay can be made solely from the parties' financial affidavits. There is no absolute requirement that the finding be based upon oral testimony. In re Walters, 238 Ill. App. 3d 1086, 604 N.E.2d 432 (1992).

One recent case held that a wife who had paid half of her own fees necessarily demonstrated ability to pay the other half. In re Mantei, 222 Ill. App. 3d 933, 583 N.E.2d 1192 (1991).

The issue of ability to pay an attorney's fees award is similar to the issue of ability to pay a spousal support award. The two issues are distinct, however, and it is at least conceptually possible that one might exist without the other. See, e.g., Tomasevic v. Tomasevic, 845 S.W.2d 661 (Mo. Ct. App. 1992) (stressing differences between alimony and attorney's fees). But see Gross v. Gross, 64 Ohio App. 3d 815, 582 N.E.2d 1144 (1990) (in modification action, if no additional award of alimony is proper, then it is likewise improper to award attorney's fees).

Sources Income. In determining ability to pay, the court should look at both assets and income. Of these two sources, income is probably the more important. A number of cases award attorney's fees to spouses with substantial assets, on the grounds that the other spouse's greater income results in a superior ability to pay. For instance, in Henley v. Henley, 796 S.W.2d 73 (Mo. Ct. App. 1990), the court gave the wife property worth $49,000. The wife had a gross earning capacity of only $275 per week, however, and she was about to become a full-time student in nursing school. The husband, by contrast, earned $46,000 per year, plus an annual bonus of $8,000 to $17,000. The trial court made an attorney's fees award against the husband, and its decision was affirmed on appeal. For additional recent cases awarding fees to spouses with significant property but smaller income capacity, see the following:

One recent case reaches a contrary result. In re Owen, 244 Mont. 306, 797 P.2d 226 (1990) (husband had larger income, but he also had higher expenses, a substantial spousal support obligation, and custody of the parties' child; wife had just finished law school and had a substantial future earning capacity; not error to refuse wife's request for fees).

The court may consider not only the spouses' actual present incomes, but also their expected future earnings. See In re Owen, 244 Mont. 306, 797 P.2d 226 (1990); Milligan v. Cange, 200 Ill. App. 3d 284, 558 N.E.2d 630 (1990). Where a spouse is deliberately underemployed, the court may look to earning capacity rather than to actual earnings. See, e.g., Arouza v. Arouza, 670 So. 2d 69 (Fla. Dist. Ct. App. 1995) (imputing income to unemployed wife); Thompson v. Thompson, 797 S.W.2d 599 (Tenn. Ct. App. 1990) (wife was unemployed but able to work; she received $20,000 in liquid assets from property division, plus substantial spousal support; not error to deny fees). But cf. Oesterle v. Oesterle, 796 S.W.2d 640 (Mo. Ct. App. 1990) (wife had been unemployed for two years before separation, but she had minimal job skills and had diligently sought employment; proper to award fees).

When there is a substantial disparity in the parties' incomes, an award of attorney's fees is almost always proper. See, e.g., Garcia v. Garcia, 570 So. 2d 357 (Fla. Dist. Ct. App. 1990) (husband earned $1,600 per month, while wife earned $440 per month; husband had more assets; error to award wife only 50% of her attorney's fees; remanded for award of 100%); In re Edsey, 199 Ill. App. 3d 39, 556 N.E.2d 552 (1990) (wife earned $159 every two weeks, while husband earned $60,000 to $80,000 per year; error to deny request for fees).

Sources Assets. In addition to considering the parties' respective incomes, the court must also consider their assets. The court must consider all of the assets owned by either party, regardless of whether the assets constitute marital or separate property under the state's property division statute. Chandler v. Chandler, 624 So. 2d 855 (Fla. Dist. Ct. App. 1993); Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (1994). Thus, an attorney's fees award can be made even if it must be paid from the paying spouse's separate property. E.g., In re Aninger, 220 Cal. App. 3d 230, 269 Cal. Rptr. 388 (1990). Likewise, a spouse with substantial nonmarital property may not qualify for a fees award. See Johnson v. Johnson, 650 So. 2d 1281 (Miss. 1994) (reversing award of fees to wife with considerable nonmarital estate).

As noted above, where the receiving spouse has substantial assets but a relatively small earning capacity, many courts have made a fees award. A fees award is particularly likely where the great majority of the recipient's property is not liquid. See Graham v. Graham, 25 Conn. App. 41, 592 A.2d 424 (1991) (where wife could pay fees only by selling her share of marital home, proper to award fees); Reynolds v. Reynolds, 664 So. 2d 1131 (Fla. Dist. Ct. App. 1996) (wife received 45% of marital property, but her assets were not liquid, and husband had better income and better health; reversing partial award and remanding with instructions to make complete award); Newport v. Newport, 759 S.W.2d 630 (Mo. Ct. App. 1988) (husband had larger earning capacity and received larger share of the liquid assets; fees award proper, even though court divided the property equally and the parties had similar present incomes); Hazard v. Hazard, 833 S.W.2d 911 (Tenn. Ct. App. 1991) (wife had $118,000 in property, but assets were mostly not liquid, and her income was only $35,000; husband's income was $200,000; error to award only $12,000 of $18,000 expert's fee; remanded with instructions to award entire amount); Hillberry v. Hillberry, 195 W. Va. 600, 466 S.E.2d 451 (1995) (where each spouse received $116,000 in assets, but wife's share was not liquid, proper to award fees).

In Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994), the only substantial asset awarded to the wife was 65% of the marital home. The only source of funds from which the wife could pay her attorney was one year of alimony and an award of retirement benefits, but the court reversed both the award of attorney's fees and the award of retirement benefits. The end result of the decision was to force the wife to sell the marital home. The children were all grown, so their interests were not harmed, but the wife was still left with very little after a marriage of over thirty years. In view of the large volume of contrary cases nationwide, it is difficult to explain Thompson on any basis other than outright gender bias.

Where the requesting spouse has substantial liquid assets, many courts have declined to award attorney's fees. See, e.g., Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992) (trial court properly refused to award $50,000 in fees to wife with $500,000 in liquid funds); Blake v. Blake, 211 Conn. 485, 560 A.2d 396 (1989) (error to award $15,000 in attorney's fees to spouse with $1.5 million in total assets, $630,000 of which were in liquid form); Kuykendall v. Kuykendall, 663 So. 2d 658 (Fla. Dist. Ct. App. 1995) (wife received 50% of marital property, a total of $262,000, plus $3,000 per month in permanent alimony and over $1,600 per month in child support; award of fees was error); In re Collingwood, 460 N.W.2d 486 (Iowa Ct. App. 1990) (wife received $20,000 lump sum, plus $5,000 per year for the next "several" years; not error to deny fees); Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990) (where husband received $1.9 million in assets and wife received $1.1 million, not error to deny fees); Garges v. Garges, 175 A.D.2d 511, 572 N.Y.S.2d 780 (1991) (wife was experienced real estate broker with $95,000 in assets; trial court properly refused to make award); Houghland v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App. 1992) (wife who received $83,479.71 in lump-sum alimony not entitled to award of fees); Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. Ct. App. 1991) (awarding no fees to wife with $62,000 in liquid funds).


The conduct of the parties is one relevant factor in awarding attorney's fees in all divorce cases. The manner in which fault is considered, however, depends upon the provision under which attorney's fees are being awarded.

Domestic Relations Attorney's Fees Provisions

Marital Misconduct. A spouse requesting attorney's fees is not barred from receiving an award merely because he or she is guilty of some form of marital misconduct. Tomasevic v. Tomasevic, 845 S.W.2d 661 (Mo. Ct. App. 1992); Williams v. Williams, 14 Va. App. 217, 415 S.E.2d 252 (1992). See generally 27B C.J.S. Divorce 357 (1986); Annotation, Alimony and Attorney Fees Wife's Misconduct, 2 A.L.R.2d 331 (1948). In some states, however, the court is permitted to consider marital misconduct as one factor relevant to the award, on the theory that, other factors being equal, the spouse whose conduct caused the divorce should pay a larger portion of the attorney's fees. See, e.g., Tomasevic v. Tomasevic; Hillberry v. Hillberry, 195 W. Va. 600, 466 S.E.2d 451 (1995).

Courts have also considered other forms of misconduct occurring before the action was filed, when the misconduct somehow results in additional litigation expenses. See Arouza v. Arouza, 670 So. 2d 69 (Fla. Dist. Ct. App. 1995) (awarding fees against mother, who alienated parties' child from father). Indeed, the mere identity of the party who filed the action can sometimes be a factor. SeeIn re Tearman, 617 N.E.2d 974 (Ind. Ct. App. 1993) (where husband had income of $760 per week and wife had income of $500 per week, and husband filed action to modify child support, proper to award $600 in attorney's fees to wife).

Unnecessary Issues. In addition, the court is permitted to consider conduct during the divorce action itself as one factor in awarding fees under the normal domestic relations attorney's fees provision. For example, when one spouse raises an entire issue which is irrelevant to the case, the courts have not hesitated to award fees to the other spouse. See Steinfeld v. Steinfeld, 565 So. 2d 366 (Fla. Dist. Ct. App. 1985) (husband repeatedly filed frivolous postjudgment motions); In re Ziemer, 189 Ill. App. 3d 966, 546 N.E.2d 229 (1989) (father showered and slept in same bed with eight-year-old daughter, forcing wife to file motion to restrict overnight visitation; making fees award); Ma v. Ma, 483 N.W.2d 732 (Minn. Ct. App. 1992) (awarding fees against husband, who unreasonably contested validity of marriage in divorce action); Farley v. Farley, 97 Ohio App. 3d 351, 646 N.E.2d 875 (1994) (post-appeal motions not relevant to appellate case).

Likewise, a spouse who raises unnecessary issues is likely to receive a reduced fees award. See In re Kosterka, 174 Ill. App. 3d 954, 529 N.E.2d 12 (1988) (reducing fees by 25% due to unnecessary, duplicative, and uncorroborated time spent on case); Shumaker v. Shumaker, 559 N.E.2d 315 (Ind. Ct. App. 1990) (wife forged husband's name on two notes, causing court to reopen hearing for additional evidence; proper to award wife only $800 in fees); W.E.F. v. C.J.F., 793 S.W.2d 446, 460 (Mo. Ct. App. 1990) (proper to reduce fees award to wife who "frenetically pursued" child abuse allegation); Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991) (where wife falsely accused husband of child abuse, proper to deny her request for attorney's fees); Glass v. Glass, 177 A.D.2d 807, 576 N.Y.S.2d 421 (1991) (proper to make only partial fees award to wife, who needlessly sought to avoid prior agreement on the value of the husband's law practice).

This point has been applied with particular frequency to parties who fail to make a good-faith effort to settle the case. In effect, such a failure makes all of the issues in the case partly unnecessary. See In re Walters, 238 Ill. App. 3d 1086, 604 N.E.2d 432 (1992) (under statute requiring fees award in enforcement of support cases, where wife's attorney spent 30% to 40% of his total time on support questions, proper to make award which covered only 25% of total time; time was partly unnecessary because wife had needlessly refused to settle case); In re Mantei, 222 Ill. App. 3d 933, 583 N.E.2d 1192 (1991) (where both parties generated needless attorney's fees by failing to settle case, trial court properly refused to grant fees award to either party); In re Johnson, 255 Mont. 421, 843 P.2d 760 (1992) (where both parties prolonged litigation, proper to award no fees to either); In re Irwin, 64 Wash. App. 38, 822 P.2d 797 (1992) (award of attorney's fees was proper; wife diligently tried to settle divorce action, but husband was unwilling to agree).

Issues Argued in Bad Faith. In addition to penalizing parties who raise unnecessary issues, courts have also used attorney's fees awards to sanction spouses who take unjustifiable positions on necessary issues. See In re Admire, 193 Ill. App. 3d 324, 549 N.E.2d 620 (1989) (husband failed to comply with property division and support provisions of divorce decree; no reasonable basis for noncompliance); Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990) (husband failed to comply with wife's reasonable discovery requests); T.B.G. v. C.A.G., 772 S.W.2d 653 (Mo. 1989) (husband sought custody only to punish wife or force reconciliation); DeBernardo v. DeBernardo, 180 A.D.2d 500, 580 N.Y.S.2d 27 (1992) (awarding attorney's fees to husband, based upon wife's obstructionist tactics in divorce case); Graham v. Graham, 175 A.D.2d 540, 572 N.Y.S.2d 800 (1991) (husband's unreasonable conduct during divorce case supported attorney's fees award); Chrein v. Chrein, 161 A.D.2d 409, 555 N.Y.S.2d 339 (1990) (husband refused to pay temporary support, without reasonable cause); Endy v. Endy, 412 Pa. Super. 398, 603 A.2d 641 (1992) (awarding fees against husband, who needlessly prolonged litigation of divorce case). See generally Kothari v. Kothari, 255 N.J. Super. 500, 605 A.2d 750 (App. Div. 1992) (good or bad faith of parties is one factor relevant to award of attorney's fees).

A minority of states do not permit the court to consider the conduct of the parties when making a fees award under traditional domestic relations principles. See Aldinger v. Aldinger, 813 P.2d 836 (Colo. Ct. App. 1991) (error to deny award of attorney's fees for purpose of punishing the requesting spouse).

Bad Faith and Ability to Pay. There is obviously a strong public policy in favor of sanctioning parties who exceed the bounds of reasonable good-faith advocacy in arguing their position. This policy is so strong that it can justify an award of attorney's fees even against the dependent spouse:

Mettler v. Mettler, 569 So. 2d 496, 498 (Fla. Dist. Ct. App. 1990).

Likewise, attorney's fees may be imposed as a sanction even where the receiving spouse is able to pay the fees without assistance. See Fitzpatrick v. Fitzpatrick, 377 Pa. Super. 268, 547 A.2d 362, 368 n.10 (1988) (where husband's "creative accounting methods" caused major problems for wife's attorneys, fees award was proper, even though wife received a substantial property award); DeBergalis v. DeBergalis, 156 A.D.2d 963, 551 N.Y.S.2d 704 (1989); T.B.G. v. C.A.G., 772 S.W.2d 653 (Mo. 1989) (noting that ability to pay is only one of several factors relevant to the award). Nevertheless, an award of attorney's fees is probably less likely where the receiving spouse has substantial assets. See Scavone v. Scavone, 243 N.J. Super. 134, 578 A.2d 1230 (App. Div. 1990) (where wife received $335,000 in assets, plus substantial support, request for fees was properly denied, even though husband's noncompliance with discovery had significantly prolonged the case).

Other Misconduct. Courts have also considered other types of misconduct during domestic proceedings in setting the amount of a fees award. See Wright v. Wright, 904 P.2d 403 (Alaska 1995) (awarding fees against husband, who dissipated marital assets, even though wife had ability to pay the fees herself); Rosen v. Rosen, 161 Misc. 2d 795, 614 N.Y.S.2d 1018 (Sup. Ct. 1994) (where opposing counsel litigated numerous technical procedural points, award of interim attorney's fees was proper, even though points raised were not entirely without merit).

Equal Guilt. Where both parties are equally guilty of prolonging the proceedings unnecessarily, neither spouse's conduct should be the basis for a fees award. See In re Mantei, 222 Ill. App. 3d 933, 583 N.E.2d 1192 (1991) (where both parties generated needless attorney's fees by failing to settle case, trial court properly refused to grant fees award to either party); Podrecca v. Podrecca, 794 S.W.2d 329 (Mo. Ct. App. 1990) (refusing to consider either party's misconduct, but ultimately awarding fees to the wife on nonfault grounds).

Other Sanctions. An award of attorney's fees is only one of several different methods the court can use to deter misconduct in domestic litigation. Where the court in its discretion chooses a different sanction, failure to award attorney's fees is not error. Error is especially unlikely where the misconduct was primarily the fault of counsel. See In re Ahmad, 198 Ill. App. 3d 15, 555 N.E.2d 439 (1990) (where husband's attorney erroneously billed paralegal time at attorney rate, trial court properly chose to give attorney public reprimand rather than make a fees award to wife).

Safeguards. The move toward considering misconduct during the domestic case as a factor in setting attorney's fees has become so strong that it has generated a counterreaction. There is no doubt that attorneys who are actually guilty of misconduct should be sanctioned appropriately for their actions. It is extremely easy, however, for trial judges to discharge their anger against the parties and the judicial system by reducing fees awards to attorneys. Such unjustified reductions harm not only the bar, but also the innocent dependent spouse, who must pay a large amount of fees without assistance. Recent decisions have therefore begun to establish safeguards to prevent abuse of the court's power to sanction misconduct during the divorce case.

To begin with, if the court intends to reduce a requested award because of litigation misconduct, it must explain specifically which acts are being sanctioned and why they were wrongful. See In re Braud, 45 Cal. App. 4th 797, 53 Cal. Rptr. 2d 179 (1996); Finlayson v. Finlayson, 874 P.2d 843 (Utah Ct. App. 1994); Rappleye v. Rappleye, 855 P.2d 260 (Utah Ct. App. 1993); Hinerman v. Hinerman, 194 W. Va. 256, 460 S.E.2d 71 (1995). Where the misconduct involved is failure to settle, the court must explain how the case was delayed and why the delay is attributable to the party being sanctioned. See Junkin v. Junkin, 647 So. 2d 797 (Ala. Civ. App. 1994) (error to reduce fees for unreasonable delay in settlement, without explaining how the delay occurred and why the sanctioned party was responsible). Where the alleged misconduct is pursuit of a frivolous argument, the court must explain why the argument was frivolous and not merely a good-faith argument which did not succeed. Hinerman v. Hinerman (mere unsuccessful pursuit of legitimate dissipation theory not sanctionable).

Other Provisions

Where one spouse has engaged in misconduct related to the divorce case itself, there is a growing trend toward allowing a remedy under principles outside the law of domestic relations. Most states have specific statutory provisions similar to Fed. R. Civ. P. 11, which allows the court to impose sanctions upon parties and attorneys who file bad-faith pleadings or motions in any type of case. In addition, many states have specific rules allowing awards of attorney's fees as a sanction for misconduct during discovery. There is no reason why this sort of bad-faith claims provision should not apply in divorce cases.

Accordingly, a growing number of cases are basing an award of fees not upon the law of domestic relations but rather upon a broad misconduct-based provision applicable to many different types of cases. See In re Quay, 18 Cal. App. 4th 961, 22 Cal. Rptr. 2d 537 (1993) (husband refused to account for proceeds from sale of certain stock, engaged in generally obstructive behavior with respect to his finances, and actively shopped for law firm willing to support his unreasonable positions); Dabrowski v. Dabrowski, 477 N.W.2d 761 (Minn. Ct. App. 1991) (husband requested five separate continuances and failed to cooperate with discovery; making fees award based solely upon husband's conduct); O'Connell v. O'Connell, 409 Pa. Super. 25, 597 A.2d 643 (1991) (vigorous defense to child support action was not tantamount to bad faith; contrary holding would have strong chilling effect upon openness of courts); In re Greenlee, 65 Wash. App. 703, 829 P.2d 1120 (1992) (husband unreasonably refused to comply with agreement, forcing wife to bring suit to compel compliance; award of fees proper even though wife had "no need," as that term has traditionally been defined); cf. Capellen v. Capellen, 888 S.W.2d 539 (Tex. Ct. App. 1994) (rejecting argument that fees award based on litigation conduct violates the open-courts provision of the Texas Constitution by discouraging parties from presenting their positions to the court).

The power to award sanctions under bad-faith claims provisions is not entirely without limits. To begin with, the mere fact that the parties adopted contentious positions on a difficult legal issue does not justify sanctions. Musser v. Johnson, 914 P.2d 1241 (Alaska 1996). Divorce cases present difficult issues for parties, attorneys, and judges alike, and it is fundamentally unfair to blame any party for the mere fact that difficult issues are involved. Further, the court must be careful about imposing sanctions merely because it believes that an unnecessary amount of time and effort was spent litigating the case. Sanctions are certainly proper where the litigation was prolonged by specific identifiable misconduct, but a general finding of excessive litigation is not sufficient. Id.; Weaver v. Weaver, 263 Ga. 56, 428 S.E.2d 79 (1993) (trial court's general belief that one party unreasonably refused to settle case cannot be sole basis for fees award). A general finding of excessive litigation is particularly hazardous because it fails to allocate responsibility for the litigation between the parties. Finally, one recent decision held that it was error to award fees as a sanction merely because one party's attorney spent less time preparing the case for trial. Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).

There are subtle but important differences between an award of attorney's fees under traditional domestic relations law and sanctions under a bad-faith claims provision. To begin with, traditional principles permit an award only where the beneficiary of the award is less able to pay the fees than the spouse against whom the award is made. Under bad-faith claims provisions, by contrast, ability to pay is irrelevant. Second, the bad-faith claims provisions generally apply only where a very specific test for bad faith is met. The precise elements of the test vary from state to state, but most of the provisions require some showing that the guilty party knew or should have known that a specific pleading or motion was not justified either by existing law or by a good-faith argument for extension of existing law. The test is objective, focusing upon what the reasonable party or attorney should have known and not upon what the actual party or attorney did know. The specific bad-faith test is often more rigid than the more flexible definition of misconduct the court can apply when treating misconduct as a factor under the domestic relations attorney's fees provision. Finally, a general bad-faith claims provision may permit a broader award of sanctions than the law of domestic relations, which generally limits the award to the actual amount of attorney's fees incurred by the beneficiary.


Regardless of the parties' ability to pay, the court should award attorney's fees only for time spent upon "necessary" legal services. The definition of "necessary" depends on the nature of the action and the nature and importance of the issues.

Nature of the Action

Attorney's fees awards are available not only in traditional divorce cases but also in a wide variety of other domestic actions.

Paternity. Some state statutes allow attorney's fees awards in paternity actions. See Milligan v. Cange, 200 Ill. App. 3d 284, 558 N.E.2d 630 (1990).

Motions to Reopen. Attorney's fees awards may include time spent on a motion to reopen the divorce decree. Bishir v. Bishir, 698 S.W.2d 823 (Ky. 1985); Bakili v. Bakili, 830 S.W.2d 251 (Tex. Ct. App. 1992) (bill of review); Knight v. Knight, 75 Wash. App. 721, 880 P.2d 71 (1994).

Modification and Enforcement Property and Support. Attorney's fees awards are available in actions to modify or enforce property division, alimony, or child support. See, e.g., In re Ingraham, 185 Ill. App. 3d 395, 541 N.E.2d 731 (1989) (spousal support); Milligan v. Milligan, 197 Mich. App. 665, 496 N.W.2d 394 (1992) (child support); Cumberland v. Cumberland, 564 So. 2d 839 (Miss. 1990) (child support); Wexelman v. Donnelly, 782 S.W.2d 72 (Mo. Ct. App. 1989) (child support); Marx v. Marx, 265 N.J. Super. 418, 627 A.2d 691 (Ch. Div. 1993) (property division; postjudgment dispute over terms of Qualified Domestic Relations Order); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 602 A.2d 741 (App. Div. 1992) (alimony); Chrein v. Chrein, 161 A.D.2d 409, 555 N.Y.S.2d 339 (1990) (temporary support); Cattren v. Cattren, 83 Ohio App. 3d 111, 614 N.E.2d 770 (1992) (alimony; specific finding of contempt or changed circumstances not required). But cf. Wiggins v. Wiggins, 601 So. 2d 98 (Ala. Civ. App. 1991) (under specific provision, court can award fees in enforcement action only if contempt citation has been filed).

As noted above, some states have enacted specific provisions which require an award of attorney's fees where a spouse refuses to pay support without reasonable cause. See, e.g., Davis v. Sprague, 186 Ill. App. 3d 249, 541 N.E.2d 831 (1989). An award under authority of these provisions covers only time spent on the support question, so that a partial award must be made if support issues are tried together with other matters. In re Walters, 238 Ill. App. 3d 1086, 604 N.E.2d 432 (1992). As with other attorney's fees provisions, these mandatory provisions allow an award only for the actual time reasonably spent handling the support issue. Id.

Modification and Enforcement Custody and Visitation. Some courts have hesitated to apply normal fees principles where the rights of children are involved. For instance, in L.L.M. v. P.M., 754 P.2d 262 (Alaska 1988), the court held that fees should be awarded only if the opposing side did not act in good faith. The court was afraid that a broader standard would deter parties from acting in the best interests of their children.

Nature of the Issues

"Necessary" legal services should include only services on issues which are related to a domestic case. Where time is spent on issues which are not so related, that time is not "necessary" for purposes of a fees award. Courts have considered the necessity of services on a number of different types of issues:

Paternity. In a divorce action, an award of attorney's fees may include time spent litigating paternity. In re Stogdill, 428 N.W.2d 667 (Iowa 1988).

Application for Attorney's Fees. The decisions are split on whether the award may cover time spent on preparing the request for fees. For cases covering such time, see In re Wright, 841 P.2d 358 (Colo. Ct. App. 1992); In re Powers, 252 Ill. App. 3d 506, 624 N.E.2d 390 (1993) (good discussion); and Wyser-Pratte v. Wyser-Pratte, 160 A.D.2d 290, 553 N.Y.S.2d 719 (1990). See also In re Schnabel, 30 Cal. App. 4th 747, 36 Cal. Rptr. 2d 682 (1994) (allowing fees to recipient of interim fee award for time spent defending that award on appeal). For cases not covering such time, see Schussler v. Schussler, 123 A.D.2d 618, 506 N.Y.S.2d 774 (not permitted), appeal denied, 69 N.Y.2d 612, 511 N.E.2d 87, 517 N.Y.S.2d 1028 (1986). If the attorney alone appeals from a decision denying counsel fees, he cannot receive a fees award for time spent on the appeal. Wood v. Wood, 143 Misc. 2d 957, 542 N.Y.S.2d 962 (Sup. Ct. 1989).

Bankruptcy. A fees award cannot generally cover time spent by counsel in federal court defending his client's award against a petition in bankruptcy. In re Burton, 203 Ill. App. 3d 890, 561 N.E.2d 180 (1990); Borzillo v. Borzillo, 259 N.J. Super. 286, 612 A.2d 958 (Ch. Div. 1992) (award not permitted, even though husband's bankruptcy petition had been filed in extreme bad faith; noting the harshness of the rule, and strongly urging the Legislature to provide a statutory remedy); Siegel v. Siegel, 243 N.J. Super. 211, 578 A.2d 1269 (1990); Burns v. Burns, ___ S.C. ___, 448 S.E.2d 571 (Ct. App. 1994); Brunner v. Brunner, 296 S.C. 60, 370 S.E.2d 614 (Ct. App. 1988). But see In re Kent, 267 Ill. App. 3d 142, 640 N.E.2d 973 (1994) (under unique statute allowing award of fees to party enforcing support, when other party lacks just cause for noncompliance, awarding fees for defense of award in federal bankruptcy action). Such fees can be awarded, however, to the extent required by a separation agreement or other contract signed by the parties. See In re Wright, 841 P.2d 358 (Colo. Ct. App. 1992) (where agreement provided that prevailing party in any future litigation could collect attorney's fees, state court properly made award to cover fees charged by attorney to protect wife's award from husband's unsuccessful attempt to discharge it in bankruptcy).

Where the dischargeability of an obligation in bankruptcy is litigated in state court, an award of attorney's fees may be proper. Rizzen v. Spaman, 106 Ohio App. 3d 95, 665 N.E.2d 283 (1995).

Tort Action. An award of attorney's fees should not include time spent on a related tort claim, even if the claim is tried together with the divorce action. Hakkilla v. Hakkilla, 112 N.M. 172, 812 P.2d 1320 (Ct. App. 1991); cf. Villasenor v. Villasenor, 911 S.W.2d 411 (Tex. Ct. App. 1995) (fees cannot generally be awarded for marital torts, but award is possible if tort claim and divorce claim are tried together and are so integrated as to involve essentially the same set of facts; test not met on facts).

Related Domestic Cases. The court may not award fees to cover time spent on other related domestic cases. An award to cover that time should be made in the other action. See Mantell v. Mantell, 384 Pa. Super. 475, 559 A.2d 535 (1989) (error to award fees to cover time spent litigating simultaneous Texas divorce action which was ultimately dismissed for lack of jurisdiction; question should have been presented in Texas action); Poliquin v. Poliquin, 12 Va. App. 676, 406 S.E.2d 401 (1991) (error to award fees for time spent litigating simultaneous Ohio divorce action).

Likewise, a dependency action is not sufficiently related to a divorce case to justify an award of attorney's fees under the domestic relations attorney's fees provision. In re Seaman, 1 Cal. App. 4th 1489, 2 Cal. Rptr. 2d 690 (1991).

Related Nondomestic Cases. The fees award in a domestic action may include time spent on a non-domestic action if the two actions are closely related. See Askew v. Askew, 22 Cal. App. 4th 942, 28 Cal. Rptr. 2d 284 (1994) (husband's breach-of-marriage-promise action against wife, which was a thinly disguised effort to obtain larger share of community property); In re Green, 6 Cal. App. 4th 584, 7 Cal. Rptr. 2d 872 (1992) (husband's malicious prosecution action against wife's attorney was sufficiently related to divorce case to justify fees award); Kass v. Kass, 560 So. 2d 293, 294 (Fla. Dist. Ct. App. 1990) (actions involving husband's solely owned corporations, which were "part and parcel of the domestic strife" between the parties); In re Auriemma, 271 Ill. App. 3d 68, 648 N.E.2d 118 (1994) (collateral litigation arising from illegal wiretap placed on wife's telephone); Frankel v. Frankel, 290 N.J. Super. 204, 675 A.2d 659 (App. Div. 1996) (action to protect assets held in trust for children against claims of creditors; otherwise, fees would come from corpus of trust, which was not in children's best interests); Heinl v. Heinl, 287 N.J. Super. 337, 671 A.2d 147 (1996) (municipal court action against wife filed by husband's paramour); Parker v. Parker, 897 S.W.2d 918 (Tex. Ct. App. 1995) (related fraud action joined with divorce proceedings).

In Lucci v. Lucci, ___ A.D.2d ___, 642 N.Y.S.2d 326 (1996), the court held that actions to impose a constructive trust and rescind a fraudulent conveyance were not related. This holding cuts against the general trend toward holding that collateral actions to protect an award against dissipation are related to the divorce case. E.g., Parker v. Parker. The actions were apparently weak, if not frivolous, and this factor may account for the court's unusual holding.

Other Nondomestic Claims. A fees award under the domestic relations standard cannot cover time spent on unrelated claims which are not part of the domestic action. See In re Campbell, 261 Ill. App. 3d 483, 633 N.E.2d 797 (1993) (error to award fees for unrelated criminal action); Crowe v. De Gioia, 203 N.J. Super. 22, 495 A.2d 889 (App. Div. 1985) (fees not available in "palimony" action), aff'd, 102 N.J. 50, 505 A.2d 591 (1986); Adinolfi v. Adinolfi, 168 A.D.2d 401, 562 N.Y.S.2d 528 (1990) (fees should not include time spent on counterclaim for constructive trust); Wyser-Pratte v. Wyser-Pratte, 160 A.D.2d 290, 553 N.Y.S.2d 719, 719 (1990) (proper not to award fees for time spent on unspecified "non-marital, contractual and equitable claims regarding the cooperative apartment").

Whether a claim is domestic or nondomestic depends upon the issues raised, not upon the way in which the court resolved them. Thus, an action to establish a marriage is a domestic action for fees purposes, even if the court ultimately finds that no marriage exists, as long as there was a reasonable basis for the losing party's argument. In re Stogdill, 428 N.W.2d 667 (Iowa 1988); Kleinfield v. Veruki, 7 Va. App. 183, 372 S.E.2d 407 (1988).

Nature of the Services

"Necessary" legal services should include only services which are necessary to resolve issues related to a domestic case. Where the services are not necessary to resolve the issues, the time spent is not "necessary" for purposes of a fees award. Courts have considered the necessity of services on a number of different types of services:

Negotiations. Time spent negotiating with opposing counsel is unquestionably as "necessary" as time spent litigating the case. Any other result would violate public policy by discouraging negotiated divorce settlements. Cueva v. Cueva, 86 Cal. App. 3d 290, 149 Cal. Rptr. 918 (1978).

Conferences. One recent decision questioned the need for extensive conferences between the attorney and the client, noting that many divorce clients will consume needless amounts of the attorney's time if permitted to do so. On the facts, where 30% of the total time spent on the case involved conferences with the client, the court held that the time spent was excessive. Argila v. Argila, 256 N.J. Super. 484, 607 A.2d 675 (App. Div. 1992); see also In re Brophy, 96 Ill. App. 3d 1108, 421 N.E.2d 1308 (1981) (thirty hours of conferences were excessive); Mayer v. Mayer, 180 N.J. Super. 164, 434 A.2d 614 (App. Div.), cert. denied, 88 N.J. 494, 443 A.2d 709 (1981) (attorney likewise spent 30% of billable time conferring with client; court found that all of this time was not necessary and reduced fees accordingly).

Travel Time. Courts have been reluctant to award attorney's fees for the time spent by an attorney from another area traveling to and from the place in which the case is heard. A good demonstration of this point is In re Siddens, 225 Ill. App. 3d 496, 588 N.E.2d 321 (1992), where one party retained counsel from another area. The majority saw no reason why local counsel could not have been retained, and denied travel expenses. A dissenting opinion noted that the case involved a large marital estate and complex issues, and that counsel had fifty years of experience in trying domestic cases. Given these facts, the dissent felt that local counsel would have been less qualified, and that travel expenses should have been awarded. For additional case law refusing to award travel expenses, see Chandler v. Chandler, 330 So. 2d 190 (Fla. Dist. Ct. App. 1976); Glass v. Glass, 177 A.D.2d 807, 576 N.Y.S.2d 421 (1991); and Reid v. Reid, 161 A.D.2d 409, 562 N.Y.S.2d 981 (1990) (attorney spent one-third of his billable time on travel and telephone calls; fees reduced from $68,000 to $45,000). But see Brock v. Brock, 654 So. 2d 163 (Fla. Dist. Ct. App. 1995) (summary holding that trial court properly included travel expenses in fees award).

One suspects that beneath the surface of these cases lies a considerable amount of prejudice against nonlocal attorneys. Such prejudice runs a very real risk of depriving the dependent spouse of his or her right to seek counsel of his or her own choice. Of course, every dependent spouse is not necessarily entitled to force the other party to pay for nonlocal counsel, but the courts would still be better off to place more importance on whether the decision not to retain local counsel was reasonable under the totality of the circumstances. For instance, where one spouse deliberately chooses to file for divorce in a forum far removed from the last matrimonial domicile, there are valid reasons why the defendant spouse might seek to employ counsel in his or her own place of residence, even if counsel in the area of the divorce case could adequately handle the case. The above cases would have done better to conduct a broader inquiry before concluding that there was no reasonable need for non-local counsel.

Misconduct. When one spouse is guilty of misconduct during the divorce case, some courts will find that any legal services related to the misconduct were not necessary. Other courts will reach the same result by holding that the services were necessary, but that the amount of fees was unreasonable. For purposes of this article, regardless of the theory which the court used, all case law dealing with misconduct is discussed in part III supra.

Identity of the Performer

Most attorney's fees awards cover time spent on the case by the requesting party's counsel. Attorneys do much of their work through assistants, however, and as long as an attorney fulfills his or her obligation to supervise the assistants' work, the services of the assistants are considered "necessary." Thus, a fees award can include compensation for time spent by paralegals and law clerks. McMackin v. McMackin, 651 A.2d 778 (Del. Fam. Ct. 1993) (excellent discussion; noting that paralegal fees cannot be charged for work which is essentially secretarial); In re Ahmad, 198 Ill. App. 3d 15, 555 N.E.2d 439 (1990).

It is important, however, to avoid unnecessary duplication of effort. Where services are performed by two or more attorneys when only one was truly needed, the extra attorney time may not be "necessary." See Tomaino v. Tomaino, 629 So. 2d 874 (Fla. Dist. Ct. App. 1993) (wife incurred needless fees by retaining expensive counsel from both Florida and Illinois); Somer v. Somer, 155 A.D.2d 591, 547 N.Y.S.2d 883 (1989) (wife had two attorneys present at hearing, one of whom was unnecessary; second attorney may not have even formally represented client; error to include second attorney's time in fees award). This rule generally applies only when multiple attorneys are retained simultaneously; there is no reason not to award normal fees to a spouse who is represented by multiple attorneys in sequence. Alphin v. Alphin, 15 Va. App. 395, 424 S.E.2d 572 (1992). Attorneys have also been denied fees for duplicating the services of expert witnesses. See Reid v. Reid, 161 A.D.2d 409, 562 N.Y.S.2d 981 (1990) (attorney accompanied appraisers while they viewed parties' property; no evidence of reasonableness in record; fees reduced from $68,000 to $45,000).

Paralegals and other assistants must document their time in the same manner as attorneys. See Argila v. Argila, 256 N.J. Super. 484, 607 A.2d 675 (App. Div. 1992) (in awarding only $85,000 of $149,000 requested total fees, court noted that requesting attorney had provided no description of specific services provided by paralegals).

Result Achieved

Whether a legal service is "necessary" does not depend upon who wins the case. The dependent spouse can receive an award even if he or she loses on some or even all of the substantive issues. See, e.g., Broesus v. Broesus, 82 Md. App. 183, 570 A.2d 874 (1990); Greenwald v. Greenwald, 154 Wis. 2d 767, 454 N.W.2d 34 (Ct. App.), cert. denied, 454 N.W.2d 806 (Wis. 1990).

While the result achieved has no effect upon whether the service is "necessary," the result achieved may be one factor in setting the size of the attorney's fees award. The effect of the result achieved on the size of the award will be discussed further in part VI infra.


The preferred basis for establishing the value of necessary legal services is the actual amount reasonably charged by the attorney involved. E.g., Klein v. Klein, 11 Va. App. 155, 396 S.E.2d 866 (1990). This basis consists of two distinct elements: the amount the attorney actually charged, and the amount of those charges which was reasonable.

Actual Charges

To prove the actual charges, the attorney must introduce evidence on two specific points: the time spent on "necessary" services and the rate charged for that time. See, e.g., In re Pitulla, 202 Ill. App. 3d 103, 559 N.E.2d 819 (1990).

For instance, in Saussy v. Saussy, 560 So. 2d 1385, 1386 (Fla. Dist. Ct. App. 1990), the court found the following evidence sufficient to prove actual charges:

There was also sufficient evidence of the actual charges in the following recent decisions:

The best way to prove the time spent is with written records created as the time was spent. In re Pitulla, 202 Ill. App. 3d 103, 559 N.E.2d 819 (1990). All time records should be maintained and used with as much care as possible. Where reasonable care is not used, the value of the time records may be questionable. See, e.g., McMackin v. McMackin, 651 A.2d 778 (Del. Fam. Ct. 1993) (fees not sufficiently proven by affidavit with attached illegible client invoices; ordering attorney to file summary of total billing with attached legible copies of invoices); In re Walters, 238 Ill. App. 3d 1086, 604 N.E.2d 432 (1992) (listings for conferences and correspondence did not identify what other persons were involved or what subject matters were discussed; proper to recognize only 192 hours out of 348 hours claimed); Cronin v. Cronin, 158 A.D.2d 447, 551 N.Y.S.2d 44 (1990) (trial court improperly based fees award upon attorney's illegible handwritten time records). Finally, of course, counsel should make certain that any records submitted to the court are introduced into evidence. See Heineman v. Heineman, 768 S.W.2d 130 (Mo. Ct. App. 1989) (attorney presented the court with detailed computer printouts of services, time involved, and charges, but neglected to have them formally admitted; error to base fees award on printout, although error was ultimately harmless).

In the absence of actual time records, after-the-fact testimony has some value. In re Pitulla. Courts are generally skeptical of such testimony, however, and frequently find that the actual time spent was less than the attorney's estimate. See In re Broday, 256 Ill. App. 3d 699, 628 N.E.2d 790 (1993) (trial court properly rejected attempted reconstruction of time spent on case, and recognized only 130 of an alleged 289 hours spent); Strickland v. Strickland, 297 S.C. 248, 376 S.E.2d 268 (1989) (affidavit stating that over twenty hours of time were spent on case was not sufficient to show actual charges). Where the testimony is vague or otherwise not credible, courts are particularly unlikely to give it much weight. See In re Norris, 252 Ill. App. 3d 230, 625 N.E.2d 6 (1992) (in light of requesting attorney's evasive testimony, proper to award only $9,000 of $17,810 in requested fees).

Courts have generally rejected attempts to compute charges by methods other than the traditional hourly rate for actual time spent. For instance, in Nickerson v. Nickerson, 608 So. 2d 835 (Fla. Dist. Ct. App. 1992), the court rejected an argument based upon "unit billing," where a flat fee is charged according to a standard schedule for each distinct service provided. These rejections are in one sense unfortunate, as there is no automatic guaranty that the traditional hourly rate system is superior to every conceivable alternative. It is probably true, however, that the policy issues raised by alternate billing methods are better considered by legislative or rule-making bodies than by judges in individual divorce cases. The attorney who attempts to recover attorney's fees under a non-traditional billing system is therefore making his argument in the wrong forum.

The actual amount charged by the attorney is not necessarily limited to the amount presently owed to the attorney. The court is free to make a fees award to a spouse who has already paid the fees with other funds. Grams v. Grams, 789 S.W.2d 846 (Mo. Ct. App. 1990); Blake v. Blake, 81 Md. App. 712, 569 A.2d 724 (1990). Indeed, a spouse can receive an attorney's fees award even if the fees were paid with borrowed funds, and the debt was subsequently discharged in bankruptcy. Rogers v. Rogers, 80 Md. App. 575, 565 A.2d 361 (1989).

Reasonable Charges

After computing the amount of actual charges, the court must then determine the amount of reasonable charges. The reasonableness inquiry focuses on the same two factors identified above: the time spent and the rate charged. In determining whether the time spent and the rate charged are reasonable, the courts look at a number of different factors:

Ryken v. Ryken, 461 N.W.2d 122,128 (S.D. 1990). See generally Annotation, Amount of Attorneys' Fees in Matters Involving Domestic Relations, 59 A.L.R.3d 152 (1974).

Expert Witnesses. The best way to prove reasonableness is through the testimony of an expert witness. See, e.g., Saussy v. Saussy, 560 So. 2d 1385, 1386 (Fla. Dist. Ct. App. 1990) (attorney introduced "testimony from an expert witness that the firm's fee and the work performed were reasonable"); Boykin v. Boykin, 565 So. 2d 1109 (Miss. 1990) (wife's attorney introduced testimony of another domestic relations specialist that rate of $100 per hour was reasonable); McCoy v. McCoy, 91 Ohio App. 3d 570, 632 N.E.2d 1358 (1993). Where one party introduces expert testimony on reasonableness, the other party is entitled to cross-examine the expert and present contrary evidence. See Ames v. Ames, 212 A.D.2d 653, 622 N.Y.S.2d 774 (1995) (error to deny cross-examination); Post v. Garza, 867 S.W.2d 88 (Tex. Ct. App. 1993) (interim fees); cf. In re Campbell, 261 Ill. App. 3d 483, 633 N.E.2d 797 (1993) (pro se party not entitled to any special consideration in cross-examining opposing attorney regarding attorney's fees issue). The importance of such cross-examination is evident from Sutton v. Sutton, 801 S.W.2d 704 (Mo. Ct. App. 1990), where the appellate court relied significantly upon a failure to cross-examine in affirming an attorney's fees award.

Testimony of the Attorney. While expert testimony is the best evidence of reasonableness, expert testimony is not required. Safford v. Safford, 656 So. 2d 485 (Fla. Dist. Ct. App. 1994) (relying upon statute); Rokicki v. Rokicki, 660 So. 2d 362 (Fla. Dist. Ct. App. 1995) (same rule controlled under common law before statute was passed). Instead, the attorney who rendered the services is also qualified to testify that the amount charged was reasonable. See In re Orlando, 218 Ill. App. 3d 312, 577 N.E.2d 1334 (1991) (relying in part upon attorney's own testimony); Osguthorpe v. Osguthorpe, 804 P.2d 530 (Utah Ct. App. 1990) (rendering attorney with fifteen years' experience in domestic relations testified that rates for attorney, paralegal, and clerk time were reasonable; fees award affirmed); Sutton v. Sutton, 801 S.W.2d 704 (Mo. Ct. App. 1990) (rendering attorney testified on time spent and rate charged; fees award affirmed); see also In re Salata, 221 Ill. App. 3d 336, 581 N.E.2d 873 (1991) (error to deny any award because no third-party expert testimony was provided).

Documentary Evidence. In some circumstances, documentary evidence may be good proof of the reasonableness of a particular fee. For instance, in Brake v. Sotolongo, 588 So. 2d 999 (Fla. Dist. Ct. App. 1991), the attorney worked for his client under the terms of a prepaid legal services plan. The terms of the plan were established in arm's-length bargaining between the attorney and the group being represented. The court held that the fee charged under the plan was automatically reasonable, rejecting the attorney's argument that a higher amount was reasonable.

Time Spent by Opposing Counsel. Another effective method for determining reasonableness is to compare the time spent on the case by the opposing lawyers. If the total times differ substantially, the higher amount of time may be unreasonable. See Match v. Match, 146 Misc. 2d 986, 553 N.Y.S.2d 626 (Sup. Ct. 1990) (discussing in some detail the advantages of this method); Kappenman v. Kappenman, 522 N.W.2d 199 (S.D. 1994) (similarity of fees charged by parties' attorneys was evidence that amount of fees was reasonable). Matchwas reversed on appeal because the party seeking fees had introduced no evidence of actual charges, see Match v. Match, 168 A.D.2d 226, 562 N.Y.S.2d 115 (1990), but the appellate court expressly noted that the use of opposing counsel's time sheets might be proper in other cases.

Conditions in the Area. Reasonableness must be determined against the background of the practice of law in the geographical area in which the case is being tried. A fee which is reasonable in one area might not be reasonable in another. See Chandler v. Chandler, 330 So. 2d 190 (Fla. Dist. Ct. App. 1976) (giving little weight to testimony of expert that fee was reasonable in attorney's county; question was whether fee was reasonable in county where the action was tried). Likewise, a reasonable hourly rate for one activity may not necessarily be reasonable for another. Indeed, one recent decision suggests that it may be prudent to charge a lower rate for out-of-court time than for in-court time. Argila v. Argila, 256 N.J. Super. 484, 607 A.2d 675 (App. Div. 1992).

Means of the Parties. One of the most difficult facets of the reasonableness inquiry is the relationship between the resources of the parties and the litigation of the case. It is an unpleasant reality of domestic practice that parties with limited means cannot afford the same level of advocacy as parties with greater means. Where an attorney overlitigates a case by providing more services than the client can afford, the extra services are not reasonable, even though the same services would have been reasonable if the parties were wealthier. See, e.g., Hogan v. Hogan, 796 S.W.2d 400 (Mo. Ct. App. 1990) (where level of litigation exceeded the complexity of the issues and the means of the parties, proper to award only $6,000 of $17,100 total attorney's fees and expenses).

Attention must also be paid to the type of counsel each spouse retains. Where a party with limited means retains an expensive attorney to litigate a modest case, the court is likely to find that some of the fees incurred were unreasonable. See In re Pitulla, 202 Ill. App. 3d 103, 559 N.E.2d 819 (1990) (attorney charged client $200 per hour for court time and $175 per hour for other time; fees application in other case at about the same time quoted rates of $125 per hour for court time and $100 per hour for other time; higher rates were unreasonable). Conversely, where the case is large and complex, it is reasonable to retain more experienced and expensive counsel.

The choice of counsel may also be influenced to some extent by the experience and conduct of the opposing side. For instance, in Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186 (1993), where the husband was an experienced teacher, attorney, and author in the field of domestic relations, the court held that the wife properly sought experienced counsel. The court held that the wife acted unreasonably, however, by having two to three attorneys present at each hearing. A strong dissent argued convincingly that the husband had brought two attorneys to most hearings, and that the wife should have been allowed to do likewise.

Uncontested Evidence. Is the court permitted to disbelieve uncontested expert testimony that a given hourly rate or time expenditure is reasonable? In Allison v. Allison, 605 So. 2d 130 (Fla. Dist. Ct. App. 1992), the husband and wife each retained experts to testify on the reasonableness of the fee charged by the wife's lawyer's associate. The trial court held that a reasonable fee was less than the estimate given by either expert. The appellate court summarily reversed the decision. Conversely, in Boykin v. Boykin, 565 So. 2d 1109 (Miss. 1990), an attorney specializing in domestic relations testified that the attorney reasonably spent 54 hours on the case. The trial court nevertheless based its award on a time period of 40 hours, and the reduction was not questioned on appeal. The two cases could be harmonized by noting that the Allison court remanded the case with instructions to either award a larger amount or explain why a lesser amount was appropriate. This resolution suggests that the trial court may find its own expert opinion to be more credible than any expert opinion submitted by the parties. Such a step is certainly unusual, however, and any trial court which disregards expert testimony should take care to explain its reasoning persuasively on the record.

Stipulations. One recent decision held that the trial court is not bound by a stipulation providing that a certain amount of attorney's fees is reasonable. Koral v. Koral, 185 A.D.2d 298, 586 N.Y.S.2d 288 (1992). This decision reached the wrong result. There is no reason under the law of contracts why one party cannot agree to pay part or all of the other party's attorney's fees, regardless of whether those fees are reasonable. There are, of course, valid reasons to inquire whether both parties truly understood and agreed to a stipulation on attorney's fees. SeeImami v. Imami, 584 So. 2d 596 (Fla. Dist. Ct. App. 1991) (where stipulation provided that rate was reasonable, time was reasonable, and amount of fees was questioned, stipulation was self-contradictory and therefore unenforceable). The court should be bound by valid stipulations on attorney's fees, however, just as it is bound by stipulations on property division, spousal support, and other issues involving only the rights of the parties involved. See Grogan v. Grogan, 641 So. 2d 734 (Miss. 1994) (relying upon stipulation that amount of attorney's fees was reasonable).

Misconduct. When one spouse is guilty of misconduct during the divorce case, some courts will find that any legal services related to the misconduct were not necessary. Other courts will reach the same result by holding that the services were necessary, but that the amount of fees was unreasonable. For purposes of this article, regardless of the theory which the court used, all case law dealing with misconduct is discussed in part III supra.

Excessive Fees. Where the total fees charged exceed the "lodestar" amount the product of the time and the rate the court must then consider whether to grant the attorney a bonus based upon the result achieved. Result bonuses are discussed further below. If a result bonus is not proper, fees in excess of the lodestar amount are almost always unreasonable. See In re Pagano, 181 Ill. App. 3d 547, 537 N.E.2d 398 (1989) (where only $37,000 in fees earned, error to make awards totaling $50,000); Somer v. Somer, 155 A.D.2d 591, 547 N.Y.S.2d 883 (1989) (where attorney spent only $2,250 of time on case, but charged client his minimum fee of $3,750, reasonable amount is only $2,250).

In most cases, the only consequence of a finding of unreasonableness is that the court's attorney's fees award will not cover the unreasonable portion of the fees involved. In one extreme case where attorney's fees ate up most of the disposable estate, however, the court strongly suggested that a spouse who incurs extreme amounts of unreasonable fees may be guilty of dissipation of a marital asset. Wrona v. Wrona, 592 So. 2d 694 (Fla. Dist. Ct. App. 1991). A finding of dissipation, of course, could have major consequences on the division of the marital estate. See generally Brett R. Turner, Equitable Distribution of Property 6.30 (2d ed. 1994 & Supp. 1995).

Fee Awards Greater Than Actual Charges

Can the reasonable charges ever exceed the actual charges? In at least some cases, the answer is yes. Where an attorney handles a case on a pro bono basis, for example, the attorney can receive a fees award even though he does not actually charge his client anything. Hale v. Hale, 772 S.W.2d 628 (Ky. 1989). Similarly, the court can make a fees award to a nonprofit legal services corporation:

Lee v. Green, 574 A.2d 857, 860 (Del. 1990); accordIn re Ward, 3 Cal. App. 4th 618, 4 Cal. Rptr. 2d 365 (1992); In re Swink, 807 P.2d 1245 (Colo. Ct. App. 1991); Benavides v. Benavides, 11 Conn. App. 150, 526 A.2d 536 (1987); In re Gaddis, 632 S.W.2d 326 (Mo. Ct. App. 1982); In re Malquist, 266 Mont. 447, 880 P.2d 1357 (1994) (overruling contrary decision in Thompson v. Thompson, 193 Mont. 127, 630 P.2d 243 (1981)); Olson v. Olson, 438 N.W.2d 544 (S.D. 1989); see also Anderson v. Anderson, 153 A.D.2d 823, 545 N.Y.S.2d 335 (1989) (legal services attorney can receive fees award, but award not required on facts of case); Gammage v. Gammage, 599 So. 2d 569 (Miss. 1992) (where record contained no information on the legal services corporation involved or the effort put forth on behalf of the particular client, insufficient basis existed to address the issue); Milligan v. Cange, 200 Ill. App. 3d 284, 558 N.E.2d 630 (1990) (trial court properly awarded fees, even though wife could have brought action using free state attorney rather than privately retained counsel).

If an attorney can receive a reasonable award of fees when the client pays no consideration, he should logically be able to receive the same award where the client pays reduced consideration. Any other result would discourage attorneys from working for clients of modest but not entirely limited means. The great majority of cases have in fact reached this result. See Shirley v. Shirley, 600 So. 2d 284 (Ala. Civ. App. 1992); Brake v. Sotolongo, 616 So. 2d 413 (Fla. 1992) (reasonable fee normally limited to actual charges, but if attorney alleges that he charged a reduced rate, opposing party bears the burden of showing that the rate was not reduced); Faust v. Faust, 553 So. 2d 1275 (Fla. Dist. Ct. App. 1989); Beeson v. Christian, 594 N.E.2d 441 (Ind. 1992) (expressly analogizing to the pro bono cases); Foster v. Foster, 33 Md. App. 73, 364 A.2d 65, 68 n.5 (1976) (collecting similar cases from other states). The Brake decision overrules earlier cases from lower courts holding that the award can never exceed the actual charges. Thurner v. Thurner, 584 So. 2d 150 (Fla. Dist. Ct. App. 1991); Winterbotham v. Winterbotham, 500 So. 2d 723 (Fla. Dist. Ct. App. 1987).

Effect on Client's Liability to Attorney

If the court finds that part of an attorney's fee is unreasonable, and therefore awards the attorney only a partial award of attorney's fees against the opposing party, what effect does that finding have upon the attorney's right to collect from his own client? The general rule is that it has no effect whatsoever. Whether a fee is reasonable for purposes of an attorney's fees award is a completely different issue from whether the fee is reasonable as against the attorney's own client.

An excellent demonstration of the correctness of this rule can be found in Rosenberg v. Rosenberg, 286 N.J. Super. 58, 668 A.2d 84 (App. Div. 1995). The court in that case found part of the wife's attorney's fees unnecessary because she had a second lawyer present at trial. Quite properly, the court saw no reason why the husband should be forced to bear the expense of unnecessary counsel. The court also noted, however, that the second lawyer was present because the wife expressly so requested. Thus, the finding of unreasonableness was attributable to the conduct of the wife, not to the conduct of the attorney, and the court specifically noted that the wife was responsible for her attorney's entire fee. See also Selvin & Weiner v. Diller, 25 Cal. App. 4th 728, 30 Cal. Rptr. 2d 742, 743 (1994) (fees incurred "to present the bizarre, venal, evasive, evidence each party felt was necessary often despite their lawyers contrary advice"; fees were necessary, at least as against counsel's own client); Bowles v. Bowles, 916 P.2d 615 (Colo. Ct. App. 1995) (finding of unreasonableness does not affect attorney's rights against own client). In short, a finding that a fee is unreasonable in attorney's fees proceedings does not address the issue of whether the unreasonableness is the fault of the attorney or the client. Such a finding is therefore not binding in subsequent collection litigation between the attorney and his or her own client.

It should also be noted that the attorney is free to collect his or her fee in a subsequent fee action. This basic truth was questioned by the Illinois Appellate Court, which held for the slimmest of reasons that the attorney could collect fees only in the divorce action. Nottage v. Jeka, 274 Ill. App. 3d 235, 653 N.E.2d 803 (1995). Nottage is an excellent example of how appellate judges, far removed from the daily process of handling domestic cases, tend to blame attorneys for every perceived flaw in the system. Fortunately, Nottage was quickly reversed by the Illinois Supreme Court. Nottage v. Jeka, 172 Ill. 2d 386, 667 N.E.2d 91 (1996). The supreme court's reversal also casts doubt on Cantwell v. Reinhart, 244 Ill. App. 3d 199, 614 N.E.2d 174 (1993), where the appellate court reached the remarkable holding that fees not awarded in the divorce action cannot be awarded in a later action. As noted above, the question of reasonableness as against the opposing party is completely different from the question of reasonableness as against counsel's own client, as the unreasonable fees might result from the client's own unreasonable conduct. As long as unreasonable fees are not based upon the attorney's own conduct, the attorney should have the right to a full recovery from his or her client.


Where there is insufficient evidence of the actual amount reasonably incurred, can the court use its own observations and experience to estimate the reasonable value of the services provided? A majority of states give the court this power:

McGinnis v. McGinnis, 1 Va. App. 272, 338 S.E.2d 159, 162 (1985); see also Turberville v. Turberville, 617 So. 2d 284 (Ala. Civ. App. 1992); In re Dick, 15 Cal. App. 4th 144, 18 Cal. Rptr. 2d 743 (1993) (interim fees); In re Powers, 252 Ill. App. 3d 506, 624 N.E.2d 390 (1993); In re Krone, 530 N.W.2d 468 (Iowa Ct. App. 1995); Sharp v. Sharp, 58 Md. App. 386, 473 A.2d 499 (1984); Doe v. Doe, 644 So. 2d 1199 (Miss. 1994) (relying upon specific statute providing that affirmative proof of reasonableness is not required); Nix v. Nix, 862 S.W.2d 948 (Mo. Ct. App. 1993); Heineman v. Heineman, 768 S.W.2d 130 (Mo. Ct. App. 1989); Jacobitti v. Jacobitti, 263 N.J. Super. 608, 623 A.2d 794 (App. Div. 1993); Delgado v. Delgado, 160 A.D.2d 385, 553 N.Y.S.2d 750 (1990); Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988); cf. Newport v. Newport, 759 S.W.2d 630 (Mo. Ct. App. 1988) (court can estimate not only attorney's fees but also paralegal fees).

A minority of states refuse to allow a fees award unless there is evidence in the record of the actual amount reasonably charged. See Cottman v. Cottman, 418 So. 2d 1241 (Fla. Dist. Ct. App. 1982); Strickland v. Strickland, 297 S.C. 248, 376 S.E.2d 268 (1980); Panozzo v. Panozzo, 904 S.W.2d 780 (Tex. Ct. App. 1995); Haumont v. Haumont, 793 P.2d 421, 427 (Utah Ct. App. 1991) (where no evidence of reasonableness in record, error to award fees). In none of these cases did the party requesting fees strongly argue that the trial court has independent expertise, and it is possible that the court would have accepted such an argument had one been made. Also a number of the cases affirm the decision of a trial court which refused to make a fees award. E.g., Anderson v. Anderson, 642 So. 2d 1121 (Fla. Dist. Ct. App. 1994). Thus, where the trial court expressly refuses to consider its own opinion on the reasonableness question, the chances of reversal appear small.

A small subset of the above minority will remand the case for further evidence rather than reverse the award of fees. SeePozaransky v. Pozaransky, 494 N.W.2d 148 (N.D. 1992). In addition, one court faced with a lack of such evidence remanded a failure to award fees, finding that the attorney involved could not reasonably be expected to introduce evidence on actual charges until the judge had made a threshold determination that a fees award was proper. Carter v. Carter, 615 A.2d 197 (D.C. 1992).

Even in states which allow the trial court to make an award without supporting evidence, it is still much better to introduce evidence of the actual amount reasonably charged. As the McGinnis court expressly noted, the fees awarded under the reasonable value approach are usually "relatively modest." 338 S.E.2d at 162; see also Goode v. Goode, 70 Ohio App. 3d 125, 590 N.E.2d 439 (1991) (awarding only $1,000 of $2,500 request). Because of this conservative approach to fee setting, an attorney is more likely to receive full and fair compensation for his efforts if he keeps accurate time records and presents them to the court. At the very least, counsel should present to the court all available information, even if the information is less than complete. See, e.g., Feinstein v. Feinstein, 778 S.W.2d 253 (Mo. Ct. App. 1989) (wife's counsel provided court with his customary rates for federal and domestic cases; these rates, combined with the court's own observations on the difficulty of the issues and the intricacy of the facts, supported the court's fees award, even though there was apparently no evidence of how much time was spent on the case).


The decisions are split on whether the court can award a higher fee to an attorney who achieves a favorable result for his client. In Head v. Head, 66 Md. App. 655, 505 A.2d 868, 876 (1986), the court expressly refused to limit the fee to the "lodestar" amount (the product of the time and rate):

Because the results obtained are one factor in setting a reasonable fee, the court approved the concept of a result bonus. The court required, however, that the bonus be reasonable when compared with the lodestar amount. In the case at hand, the trial court had awarded a $75,000 bonus, while the lodestar amount was only $45,400. In addition, the client had not specifically consented to the bonus in advance. The court found the bonus excessive, and remanded the case for entry of a more reasonable award.

Head is not the only case to question a result bonus which was not mentioned to the client. In Salerno v. Salerno, 241 N.J. Super. 536, 575 A.2d 532 (Ch. Div. 1990), the court seemed to approve of the general concept of a result bonus. In the case at bar, however, the attorney's retainer agreement with the client had failed to mention any specific result bonus. The court therefore found that the result bonus was unreasonable.

In other states, result bonuses may be per se improper. For example, a long line of Florida cases holds that the lodestar amount should be exceeded in domestic cases only in rare and unusual circumstances. See Garcia v. Garcia, 570 So. 2d 357 (Fla. Dist. Ct. App. 1990); Pirino v. Pirino, 558 So. 2d 171 (Fla. Dist. Ct. App. 1990); Siegel v. Siegel, 564 So. 2d 226 (Fla. Dist. Ct. App. 1990); Faust v. Faust, 553 So. 2d 1275 (Fla. Dist. Ct. App. 1989); see also Bellow v. Bellow, 94 Ill. App. 3d 361, 419 N.E.2d 924 (1981). These cases reason that any award above the lodestar amount is a contingent fee award, which is improper in divorce cases.

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