In North Carolina, Who Pays The Attorney’s Fees In A Divorce?

Attorney fees can be a contentious issue in any divorce case. In most civil cases in North Carolina, the parties are required to pay their individual attorneys out of pocket in the absence of an agreement to do otherwise.

However, with family law cases, North Carolina statutes provide a legal basis for one party to pay the other party’s legal fees. It’s not as simple as the losing party paying the winning party’s fees – or as straightforward as the higher income individual paying the attorney fees of the lower income individual.

How is it determined? It depends on the type of family law case, and North Carolina has different standards for child support/child custody cases and alimony/spousal support cases.

Attorney’s Fees In Child Support & Child Custody Cases

In child support and child custody cases, North Carolina GS 50-13.6 determines the standards for an award of attorney’s fees. The standard it sets for child custody cases is that the court may order payment of reasonable attorney’s fees in cases where (1) the interested party is acting in good faith, and (2) they are financially unable to pay the fees. Once those standards are met, it is at the court’s discretion on whether or not to order the payment based on the facts and circumstances of that particular case.

In child support cases, however, North Carolina has an additional provision that must be met – the court must find that the parent or individual ordered to pay child support has refused to provide adequate support before or at the time the action is filed.

Attorney’s Fees In Alimony & Spousal Support Cases

For alimony and spousal support cases, the standard is different than in child support and child custody cases. North Carolina GS 50-16.4 states that attorney fees for alimony and post-separation support cases may be awarded and paid in the same method as alimony if (1) the person receiving the fees is determined to be a “dependent spouse,” (2) if the other party is a supporting spouse, and (3) if the party seeking payment of attorney’s fees would be entitled to alimony or post-separation support.

Further Reading: What Does “Dependent Spouse” Mean?

Additional Ways To Have Fees Paid In Divorce And Other Actions

In cases apart from the situations above, the court has broad discretion in choosing who pays attorneys’ fees and costs. In most of the situations below, only a portion of fees would be awarded. Some of them include: 

Whether the party against whom fees are sought has acted in bad faith, vexatiously, or wantonly

The court will determine whether there was a vindictive motive for bringing or defending against a claim. It will also look at whether there was any frivolous conduct on the part of the party against whom fees are sought. 

For example, if the other side brings a frivolous claim in bad faith under the premise that by doing so, he will get you to spend money on attorney’s fees and get hit with your own bill, this would be considered “vexatious or wanton” conduct.

Whether an award of attorney fees against either party would cause such party substantial financial detriment

The court will look at both parties’ financial situations and whether an award of attorney fees would pose a substantial financial detriment to one party. The court will not make such an order if it deems doing so would likely cause the other side to suffer substantially due to paying such a fee.

Whether either party engaged in conduct during the litigation that delayed the final resolution of the case

In awarding attorney fees, the court may consider whether conduct during litigation delayed resolution of a matter to either party’s disadvantage. Cases in which such conduct occurred would typically be where one side has unnecessarily lengthened an already long and drawn-out case through their own actions or omissions.

Such conduct would typically take the form of delay by one party in completing discovery, extending the time to file a motion for summary judgment, or dragging out negotiations.

What happens if a party is awarded legal fees and fails to pay?

Some judges currently include a provision in their orders awarding attorney’s fees that makes the payment of those fees contingent on an agreement by both parties to mediate all future issues involving the children or marital estates. 

This assists the party awarded attorney’s fees because, under North Carolina law, “any monetary judgment entitling one spouse to payments from the other spouse is subject to immediate wage withholding as ordered by a court of competent jurisdiction” according to North Carolina GS 50-13.4(b). 

Thus, if a party is awarded attorney’s fees and fails to pay them under the court order, they can be subject to immediate wage withholding.

How and when to ask for attorney fees

If you need your spouse to pay some or all attorney’s fees, it’s important to talk with your attorney about that at your initial consultation. Before trial, you can ask the court to award you attorney’s fees in your final pretrial order. You can make this request via motion or pleading in the final pretrial order, which requests the court to rule on your request for attorney’s fees after the trial.

You can also request attorney’s fees if your spouse has been resistant to a proposed settlement agreement that you have negotiated in good faith. If you and your spouse reach a mediated settlement, but then your ex-spouse fails to honor the agreement, you can request that your ex-spouse cover your attorney’s fees.

Our North Carolina Divorce Attorneys Can Help

All legal fees’ settlement options in a divorce matter are impacted by the circumstances of your marriage and each party’s financial status. Getting experienced legal counsel from Schulz Stephenson Law can help you navigate the intricacies of how legal fees are paid during and after your divorce. Contact us today if you would like to schedule a confidential consultation with an experienced and compassionate North Carolina divorce attorney.