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I Can't Afford Attorney's Fees
Unfortunately, divorce can often be a very costly process. The costs associated with divorce may severely limit some spouses’ ability to initiate divorce proceedings or fully litigate a divorce action once it is filed. Fortunately for divorce litigants wondering “I Can’t Afford Attorney’s Fees, Now What Do I Do?” there are several possible solutions to this conundrum. Depending on the stage of the divorce process, those considering divorce or those currently going through the divorce process may take advantage of certain resources and rules of law that may make the divorce process more economically feasible.
Initiating the Divorce Process
One of the biggest hurdles faced by those seeking to obtain a divorce in Georgia are the initial costs associated with divorce. In addition to attorney’s fees, costs such as filing fees, service fees and other court costs create a barrier to entry that many prospective divorce litigants simply cannot overcome. This barrier is only exacerbated by the fact that Georgia divorce attorneys may not undertake domestic relations matters on contingency. Georgia Rule of Professional Conduct Rule 1.5 (d)(1). Below are options that may be considered by those seeking divorce in Georgia without the economic resources to pay the costs associated with initiating a divorce action:
- Pro se – Due to the complex nature of divorce in Georgia, it is generally not advisable to proceed pro se and represent one’s self in divorce. But, for those simply unable to bear the cost of attorney’s fees, there are several resources available to the pro se litigant. For example, several counties in Georgia offer court approved divorce forms free of charge. These forms generally include template Petitions for Divorce, Parenting Plans, Child Support Worksheets, and Settlement Agreements. Additionally, those unable to pay the filing and service fees associated with filing a Complaint for Divorce in Georgia (such fees generally total around $250 to $270) may file what is known as an Affidavit of Indigence. This affidavit asks the court to waive the mandatory filing fee, service fee and other court costs associated with filing for divorce in Georgia. Indigence waivers are not automatically granted, and certain income qualifications must be met before a court will grant such a request.
- Pro Bono Attorney – Pro bono attorneys provide legal services at a greatly reduced charge or at no charge at all. Very few private attorneys take on pro bono divorce cases. Thus, those seeking pro bono legal assistance with domestic relations actions such as divorce or child custody matters should contact Atlanta Legal Aid or Georgia Legal Services.
- Uncontested divorce with limited attorney engagement – This option involves both parties coming to an agreement concerning child custody, child support, alimony and equitable division prior to initiating the divorce action. Once a couple has reached an agreement, one of the spouses may engage an attorney for the limited purpose of drafting the necessary legal documents and submitting them to the court. Alternatively, the parties may choose to draft their legal documents themselves and engage the services of an attorney to simply review the documents and submit them to the court.
During the Divorce Process
Divorce cases have the potential to be extremely acrimonious and, for this reason, they may drag on longer and cost more in legal fees than a party initially expected. Thus, it is not uncommon for a divorce litigant to discover that he or she is no longer able to pay the attorney’s fees necessary to litigate the divorce action to completion. In this event, the following options should be considered:
- Attempt settlement – One of the most effective ways to limit costs of divorce is to attempt settlement early on in the divorce process. In fact, if the parties are able reach an agreement prior to initiating the divorce action, an uncontested divorce may be filed. Filing an uncontested divorce is a way to considerably reduce the costs of Georgia divorce. If the parties are unable to reach a settlement prior to initiating the divorce action, mediation or other forms of alternative dispute resolution may be used by parties to reach a settlement in order to avoid the costs associated with trial.
- Meet with Attorney Regarding Expenses – Another very effective option that many divorce litigants often overlook is simply speaking with their divorce attorney about costs. Divorce attorneys are intimately familiar with the divorce process, and can advise clients on how to control and reduce the costs associated with divorce. Although many view attorneys as the reason for the high costs of divorce, experienced and caring attorneys often work closely with their clients to control divorce costs.
- Seek an award of attorney’s fees – Once a divorce action is filed, Georgia law allows for an award of attorney fees to a spouse who is economically unable to pursue the case until it fully and finally resolved. According to this provision of Georgia law:
“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). Basically, the above cited law allows courts to award attorney’s fees to a spouse who would be unable to vindicate her interests during the divorce process without such an award. The fees can be awarded in full, at the end of the divorce proceeding, or on account, which means the spouse ordered to pay the other’s fees must pay them as they become due. O.C.G.A. §19-6-2(a)(2). Attorney’s fees may be awarded at a temporary hearing, a final hearing, or both, if the financial circumstances warrant the awards. O.C.G.A. §19-6-2(b). It is important to note however that the above cited law only applies in alimony cases or in divorce cases in which alimony is sought.
Finalizing the Divorce Process
Once a divorce becomes final, divorce litigants must then go about the task of paying any resulting attorney’s fees, expert witness fees and Guardian ad Litem fees. This task can be especially daunting if the economic circumstances of the litigant have been negatively impacted by the divorce process. In such cases, there are two primary options that should be considered:
- Collateral motion for attorney’s fees – In Georgia, parties have up to 45 days after a divorce case has been finalized to file a Motion for Attorney’s Fees pursuant to O.C.G.A. § 9-15-14, Georgia’s law regarding the assessment of litigation costs and attorney's fees for frivolous actions and defenses. Although courts do not regularly award attorney’s fees when they are sought based on this law, an award is possible. However, to potentially win an award of attorney’s fees based on this law a litigant must prove to the court that the opposing party unnecessarily expanded the scope of litigation during the divorce process.
- Meet with attorney regarding alternative payment arrangements – Alternatively, litigants who find it difficult to pay attorney’s fees once the divorce has been finalized should meet with their divorce attorney to discuss alternative payment arrangements. For example, if a client is unable to pay a final bill in full, an attorney may agree for that client to make monthly installment payments toward the outstanding balance until it is paid in full. Acceptable methods of payment vary by attorney, so clients should have a frank conversation with their attorney in the event issues arise limiting their ability to afford attorney’s fees.