In a Georgia divorce or alimony case, an award of attorney’s fees is treated as part of temporary alimony, and it exists so that both spouses can afford to litigate.
What the Statute Says
OCGA 19-6-2(a) authorizes “the grant of attorney’s fees as a part of the expenses of litigation, made at any time during the pendency of the litigation,” in an action “for alimony, divorce and alimony,” or a related contempt case. The temporary alimony statute, OCGA 19-6-3(a), likewise speaks of “temporary alimony, including expenses of litigation.”
Why the Fees Count as Alimony
In Scott v. Scott, 251 Ga. 619 (1983), the Georgia Supreme Court called fees “an intrinsic part of temporary alimony, awarded to a spouse for the purpose of enabling that spouse to contest all issues raised in the pending action,” and held that a spouse can receive fees even though no alimony is awarded. Likewise, in Johnson v. Johnson, 260 Ga. 443 (1990), the court explained that “[t]he purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.”
The award therefore turns on the spouses’ finances, covered in a separate post, not on who wins.
What the Award Can Cover
Expenses of litigation reach more than the lawyer’s bill. In Dunham v. Belinky, 248 Ga. 479 (1981), a judge refused on principle to make a husband pay for the private investigator who uncovered his adultery, and the Supreme Court reversed, because on such expenses “the trial judge is required to exercise his discretion.”
What It Does Not Reach
In Padilla v. Padilla, 282 Ga. 273 (2007), $7,200 in fees from a wife’s earlier, dismissed divorce filing and an IRS proceeding were struck, because nothing in the statute “supports the inclusion of fees from separate litigation.” Similarly, Appling v. Tatum, 295 Ga. App. 78 (2008), reversed a $10,000 award in a legitimation case because the statute “only applies to alimony and divorce cases.”
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!