When will the court order a party to pay the other's attorney's fees in a family law case?

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By Amber Turner

In civil litigation, which includes cases in the Probate and Family Courts, the American rule generally dictates that each party is responsible for its own attorney's fees and expenses. However, there are some exceptions to this, and in Massachusetts some 'fee-shifting' statutes provide for one party to cover the other's legal costs, particularly in domestic relations or family proceedings.

Litigation can be expensive, and in recognition of the difficulties this can create for some litigants, Massachusetts law allows for the payment of an allowance at the beginning of proceedings to one party to enable them to prosecute or defend an action. The Supplemental Probate and Family Court rule 406, which permits this, requires the party seeking the allowance to state that they intend in good faith to prosecute or defend the action, and requires the party's attorney to certify they believe this to be true.

In family law proceedings involving divorce, separate support, annulment, abuse prevention, contempt, and child custody, there are further provisions which allow for fee-shifting in certain circumstances.

In divorce proceedings, M.G.L. c 208 s 38 provides for an award of attorney's fees, though an application must be made before final judgment is entered. M.G.L. c 208 s 17 provides for money to be paid by one party into the court while divorce proceedings are ongoing to allow the other party to maintain or defend the action after it has begun. This may include funds for attorney's fees and alimony, and again recognizes the economic difficulties that one party may face as a result of proceedings being brought. Awards under s 38 and s 17 may be made even in the absence of bad faith or frivolous defenses. In contempt proceedings, where a defendant is found in contempt of an order of the court to make monetary payments, there is a presumption that the plaintiff is entitled to receive reasonable attorney's fees (M.G.L. c 215 s 34A). In a contempt action where it is alleged that the defendant has failed to comply with the terms of a divorce judgment, the court can make an attorney's fee award to a successful plaintiff, and additionally to a successful defendant where the complaint is found to be unsubstantiated. M.G.L. c 231 s 6F provides for an award of attorney's fees in any proceedings (not only family law) where the court finds that insubstantial, frivolous, or bad faith claims or defenses have been made. In these cases, the award represents the court's disapproval of inappropriate use of its processes, and is effectively a sanction. It also protects to some extent parties who enter the court process through no choice or fault of their own.

These fee-shifting rules are valuable in ensuring that parties who may otherwise not have the means to continue litigation and achieve a fair result are able to do so. The prospect of bringing family law proceedings can be daunting for a number of reasons, but the court, especially by utilizing the allowance provisions of Rule 406 and s 17, has the power to alleviate some of a potential litigant's financial concerns. However, litigants must be aware that these powers are not always utilized to their full potential. Anecdotally, attorney's fees are awarded rather conservatively by the courts of Massachusetts. Perhaps there is room for improvement.

Amber Turner was a Fitch Law Partners summer intern in 2019 through the International Academy of Family Law Attorneys (IAFL). She studies law at Cambridge University/Pembroke College in the United Kingdom and was the 2019 winner of the AIFL Travel Studentship.

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