Blog Post

How Your Spouse Can Pay for Your Child Custody Fees

Russell Family Law & Litigation • Jul 20, 2020

You Can Have Your Spouse Pay for Your Custody and Child Support Legal Fees — Here’s How

Not only does a divorce take a great emotional toll on everyone involved, but it can also take a serious hit on your finances.

Both you and your soon-to-be ex-spouse will be separating your assets and transitioning to living off of one income. You may also have to move out of the family home or buy a new car, which will likely entail further expenses.

And then there are the legal fees to consider. Good divorce attorneys do not come cheap. What's more, their fees could rise exponentially if you and your spouse have underage children. When you factor in any child support and custody actions, your total legal bill can easily skyrocket.

If your attorney charges a flat rate, at least you will know in advance how much more you would have to pay for child-related litigation. If they charge by the hour, however, you might be in for a surprise, and it is not going to be a pleasant one. Every single email, phone call, meeting, and court appearance will add to your legal bill.

That is stressful enough as it is, but even more so if you were the dependent spouse in the marriage. You may only have a low-paying, part-time job — or none at all. You may not even have your own savings.

So how will you be able to afford — let alone win — a child support or custody battle in court? With so much at stake, your higher-earning spouse is sure to spare no expense on hiring the top divorce attorneys.

Here comes the silver lining: you may be able to have your spouse cover your attorney’s fees in relation to any custody and/or child support litigation — subject to certain conditions.

Are You Eligible?

According to North Carolina law, to qualify for having your attorney’s fees paid by the other party, you must be an interested party who is:

Acting in good faith
Unable to defray the litigation costs

You have to meet both conditions to be eligible.

Good Faith

First, the court will determine if you are acting in good faith. There is a lot that goes into this inquiry, as the judge will be looking at your overall behavior and intentions. You will not be deemed acting in good faith if, for example, you have filed a frivolous action for child support.

Unable to Defray the Costs

If the court is satisfied that you are acting in good faith, it will go on to consider whether or not you can pay the litigation costs.

The good news is that you do not have to be out of work or with no funds whatsoever to be eligible. You only have to be unable to pay for adequate legal counsel.

To be considered a dependent spouse, you do not have to be a stay-at-home parent — although if you are, you would certainly qualify. However, a working spouse can still be deemed dependent. In making its determination, the court will take a broad view of your circumstances and overall financial state.

Refusal to Pay by the Other Party

If you are claiming attorney’s fees in proceedings that are solely for child support, you would also have to meet a third requirement to become eligible.

In addition to establishing good faith and that you do not have sufficient means to cover the litigation costs, you would need to prove that the other party:

Has been ordered to pay child support; and
Has refused to pay adequate support under the circumstances.

How Much Can You Get?

Custody and/or Child Support Fees

You can only claim attorney’s fees that are related specifically to custody and/or child support issues. That means you cannot recover your expenses for any part of the proceedings that deals with other matters. What’s more, under this provision, you cannot claim compensation for legal fees relating to any other divorce-related proceedings, such as alimony or equitable distribution. You can still claim these, but you would have to file the request in separate pleadings.

Contempt of Court Fees

However, there is one exception to the rule above. You may also be able to recover your attorney’s fees for any contempt of court proceedings where your spouse has failed to obey a child support or custody order.

Reasonable Costs

Furthermore, the amount you are claiming needs to be reasonable. Otherwise, attorneys might be tempted to inflate their fees. So, the judge will be looking at whether the fees are unusually high as well as:

The type of legal services provided
The required level of skill
How much time your attorney spent working on your case
Your attorney’s standard hourly rate
The average divorce attorney’s rate for this type of proceedings

These and other considerations will help the court determine whether the amount you are claiming is indeed reasonable.

How to Claim Attorney’s Fees?

You can claim your attorney’s fees in your initial pleadings.

Alternatively, you can file the request in a separate motion after the court makes a determination in the main action for custody and/or child support.

What Is the Purpose of This Provision?

The reason the law is set up like that is to allow the parties to custody and/or child support litigation to meet each other on a level playing field.

If it were not so, the proceedings would be skewed in favor of the party who is better off financially. That would be incredibly unfair, especially when it comes to matters involving the well-being of children.