Family law statutes give judges broad discretion to "fee-shift," or to require one side to reimburse the other side for part or all of their attorney fees incurred in the case. Although the law is clear that attorney fee awards in divorces are not supposed to be awarded simply based on who "won," most attorneys assess their client's attorney fee claim based on the outcome of the case (did they "win" or not).
There are a few big factors that impact attorney fee decisions:
- Income and resource disparity. If one side makes significantly more money than the other, this can be a factor in awarding fees to the side with less income.
- Bad litigation behavior. If one side behaves badly in the case, such as missing court dates, not responding properly to discovery, or other actions that drag the case out, this can be a factor in awarding fees to the side that did not engage in the bad behavior.
- Which parent put the interests of the child above their own. In child custody cases, the judge may assess whether the parents were self-centered or if their claims in the case were child-centric. If a parent acted selfishly, dragged the case out, or made false claims to try to gain a strategic advantage, these can all be factors in awarding fees to the parent who acted with the interests of the children first.
One can never enter divorce or custody litigation as if they are assured an award of their attorney fees. There are too many factors and there is too much discretion involved. However, each side should be aware of the factors that impact attorney fee awards and behave accordingly. Litigants who engage in bad or selfish behavior do so at a great risk -- risking their credibility and exposure to an order requiring them to pay the other side's attorney fees.
*The links go to Oklahoma appellate cases which include important discussion about the law as it concerns attorney fee awards.