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Attorney's Fees and Equitable Division

According to O.C.G.A. § 19-6-2, attorney’s fees may be awarded in alimony cases or divorce and alimony cases. However, this section of Georgia law does not specifically authorize awards of attorney’s fees in cases where no alimony is sought. This may be explained by looking to the purpose of this section of law.

The purpose of Georgia’s provision for the award of attorney’s fees for alimony or divorce and alimony cases is to ensure that each spouse is able to prosecute the case to its completion with the aid of competent counsel. See Johnson v. Johnson, 260 GA. 443 (1990); Brady v. Brady, 228 Ga. 617 (1972). Normally, in cases where one spouse is seeking alimony, it is because that spouse is not able to sufficiently support himself or herself without the aid of the other spouse. Thus, he or she may need an award of attorney’s fees in order to be able to carry the divorce case to its completion. However, in cases where neither spouse is seeking spousal support but are instead only seeking the division of marital property, the spouses may not necessarily be in the same unequal financial condition. Under the facts alone, an award of attorney’s fees is likely not warranted.

If the divorce case does involve a request or award of alimony, the likelihood that attorney’s fees may be awarded according to O.C.G.A. § 19-6-2 is greater. However, the award of attorney’s fees is ultimately decided by the judge presiding over the case. Once one party requests attorney’s fees, the judge will analyze the facts of the case, as well as the testimony of both spouses, and base his or her decision on the financial circumstances of both parties in the divorce. O.C.G.A. § 19-6-2(a)(1). As the award of attorney’s fees is within the discretion of the judge hearing the case, it is important to know that even though you may ask for attorney’s fees there is no guarantee that the judge will actually grant attorney’s fees in your case. Even if the judge presiding over your divorce does grant your request for attorney’s fees, the judge is not required to award you the entire amount of fees you incurred during your divorce. See O.C.G.A. § 19-6-2(a)(2). In fact, it is more often the case that judges actually award amounts less than what is incurred by the requesting party.

Attorney’s fees in divorce cases are often costly and an award of attorney’s fees in your case may lessen the total amount of attorney’s fees you must personally pay. However, as mentioned earlier, whether to award attorney’s fees and the amount to be awarded is at the complete discretion of the judge presiding over your case. To learn more about what you can do to keep the costs of your Georgia divorce down, see our article entitled “Lower the Costs of your Georgia Divorce.”

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