What factors do courts consider when determining the amount of attorney’s fees to award in a divorce proceeding?

divorce custody domestic feesThe amount of attorney’s fees awarded in a divorce proceeding is within the discretion of the court. Va. Code 20-99(6) (2016). There are no specific requirements for determining an amount for the award, but in general courts must be reasonable under the circumstances. O’Donnell v. O’Donnell, 59 Va. Cir. 1, 3 (Jan. 8, 2002) (“Although there is no case directly on point, I think that an award of attorney fees in a divorce case must be reasonable”). The standard of review is abuse of discretion, and as long as the trial court shows the amount is reasonable, they have acted within their discretion. See Robertson v. Robertson, 215 Va. 425 (1975).

Was the Attorney’s fee reasonable?
A court will only award an Attorney’s fee if the court considers that fee reasonable. Belcher v. Belcher, 2006 Va. Cir. LEXIS 12, at 2 (Jan. 17, 2006); O’Donnell, 59 Va. Cir. 1, at 3. The court should consider the (1) the time and effort of the attorney, (2) the nature of services, (3) the complexity of services rendered, (4) the value of services to the client, (5) the results obtained, (6) what other attorney’s charge for similar services, and (7) whether the services were necessary and appropriate. Chawla v. BurgerBusters, Inc., 255 Va 616, 623 (1998). While these factors by in large match what is considered in divorce courts, see O’Donnel 59 Va. Cir. 1, at 3, it would be inappropriate to consider the result obtained, because in a divorce proceeding it is inappropriate to consider who prevailed in awarding attorney’s fees. See Mayer v. Corso-Mayer, 62 Va. App. 713, 734-35 (2014). Appellate courts do not require trial courts to consider all of these factors, or require them not to rely on other factors. DeLuca v. Katchmeric, 2005 Va. App. LEXIS 335 at 3 (Sept. 6, 2005) (reaffirming abuse of discretion as the standard of review for attorney’s fees). Courts do not often find attorney’s fees in divorce proceedings unreasonable, even when they are quite high. See O’Donnell, 59 Va. Cir. 1, at 2 (total attorney’s fees of $ 86,782.10 reasonable).

Financial Need
Awards based solely on disparity of income are typically larger than those based solely on unreasonable delay or over-litigation. See, eg., Johnson v. Johnson 2011 Va. Cir. LEXIS 32 at 28 (Feb. 7, 2011) ($ 57,000 dollar reward based a complete disparity of income and debt taken on to try the case). While the court is not explicit in its calculation, it is implied that the size of the reward is proportional to the financial need. See generally Id; Belcher v. Belcher, 2006 Va. Cir. LEXIS 12 at 1, 4 (Jan. 17, 2006) ($ 7,500 of $ 22,661.81 awarded to wife when wife made $ 33,280.00 a year, and husband $ 86,000 a year).

Over-Litigation or Unreasonable Delay
Awards based on one party’s unnecessary over-litigation or delay tend to be smaller. See Northcutt v. Northcutt, 39 Va. App. 192, 200 (2002) ($ 1,500 dollars awarded after wife failed to execute an auction for sale of a house that she had insisted on); DeLuca v. Katchmeric, 2005 Va. App. LEXIS 335 at 195 (Sept. 6, 2005) ($ 3,000 for opposing party necessitating multiple motions to execute sale of the house). However, it is implied that a court will try to match the reward roughly to the increase in expenses due to the party’s bad actions and how severe those actions were. See generally Amberly v. Ambery, 2010 Va. App. LEXIS 43 at 4, 7 (Feb. 2, 2010) (awarding wife $ 10,000 of $ 34,841.66 of attorney’s fees incurred when the husband increased the costs of litigation by withholding needed information, the trial court described husbands representations as “at the best, evasive; at the worst, untruthful”).

Unfortunately if courts use any calculations or formulas to determine how much to award for attorney’s fees they aren’t putting it in their opinions. Awards seem grouped around $ 7,500, or roughly a third of total attorney’s fees. See, eg., O’Connor v. O’Connor, 2003 Va. App. LEXIS 629 (Ct. of Appeals Dec. 9, 2003) ($ 8,193.54); Belcher, 2006 Va. Cir. LEXIS 12 at 1 ($ 7,500); Amberly, 2010 Va. App. LEXIS 43 at 7 ($ 10,000 dollars of $ 34,841.66 awarded). While there appears to be some correlation between the degree of financial need or severity of the bad action the award is based on and the size of the award, this is just a general trend and there are many outliers.  See Northcutt, 39 Va. App 192, 200 (awarding a husband only $ 1,500 even though the wife’s actions were held to increase the cost of litigation and materially decrease the value of their home).

If you have questions about your divorce or whether you are entitle to attorney’s fees, please contact the lawyers at of Winslow & McCurry, PLLC at (804)-423-1382.