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Award of Fees Due to Financial Circumstances

Divorce can often be a very costly process, and for some spouses the costs associated with divorce make obtaining one virtually impossible because they lack the personal financial resources needed to initiate and complete the divorce process. Additionally, many couples who are considering or who are on the brink of divorce have already begun to separate their bank accounts and other financial assets. This situation often leaves the spouse with the more limited earning capacity in the position of not being able to afford an attorney or the other costs associated with initiating or defending a divorce action. Fortunately, for some spouses facing this issue, Georgia law may provide some relief.

When a spouse files a complaint or counterclaim for divorce, he or she may request that the court award them temporary spousal support, temporary child support and interim (temporary) attorney's fees. If you are involved in a divorce action or if you are contemplating seeking a divorce, but you fear you may not be able to afford the total costs associated with the divorce process, your spouse may be ordered by the court to pay your attorney’s fees.

According to O.C.G.A. § 19-6-2:

“The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be: Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party …”

O.C.G.A. § 19-6-2 (a)(1).  The purpose of this statute “is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.” Johnson v. Johnson, 260 Ga. 443 (1990)(citing  Blanchet v. Blanchet, 251 Ga. 379, 380-81 (1983)). See also Brady v. Brady, 228 Ga. 617, 618 (1972)(holding that “the allowance for attorney's fees should be sufficient to insure to the [spouse] proper legal representation by a competent attorney…”). In other words, the purpose of this law allowing the award of attorney’s fees to one spouse is to ensure that no spouse is unfairly prejudiced in a divorce matter because of his or her inability to afford effective representation.

Please note that temporary attorney’s fees are not awarded in every divorce case and a judge’s decision whether to grant temporary attorney’s fees to a spouse depends on the facts and circumstances of each case.

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