After ongoing attempts at negotiating and settling with my spouse out of court, I have had an epiphany. As there has been no relationship established between my spouse and my 6 year old, I have been advised by several legal minds that out-of-state parenting will likely NOT be granted. My spouse continues to insist on out-of-state parenting time and this is, in fact, the only thing we cannot seem to get past because I know that it is not in my child's best interest to go out of state and this has been re-iterated by my son's therapist. I remembered that on my spouse's response to my petition that he is requesting that I pay his legal fees if we go to trial. I believe he is attempting to push the case to trial so that I have to pay his legal fees. Could this be awarded?
As an FYI, when I told his lawyer I would not pay his legal fees, his lawyer responded, "that depends on how complicated you are and whether or not you comply with our demands."
Family Law Attorney
There are a number of factors that a court considers when deciding whether to grant an award of attorney fees. These include: the objective reasonableness of the parties' positions and requests; their reasonableness in how they have conducted the litigation, and whether one party unnecessarily prolonged it; the financial resources of the parties; and - most decisively - who won. You can only get the other side to pay your attorney fees if you actually won your claim.
In general, in my experience, awards of attorney fees in family law cases are fairly rare. Everyone always asks for them, just in case, but it's relatively rare to get them. It's possible, especially if you make things unnecessarily difficult and they end up winning, but it's not very likely.
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Divorce / Separation Lawyer
The short answer is "yes, they *could* be awarded." However, an award against you based strictly on the facts posed appears unlikely.
As stated by other attorneys on this forum, awards of attorney fees are generally the exception rather than the rule. Judges tend to use them to address behavior that is unusually unreasonable, costs the court or parties additional money, or that is frivolous/bad faith. The other circumstance judges tend to award attorney fees is where it would be equitable to do so. (i.e. neurosurgeon husband ordered to pay for fees for unemployed wife who was forced to hire attorney by borrowing from family).
I generally tell clients that, so long as they act in good faith and take reasonable positions under the law, the chances of being hit with attorney fees tends to be quite low. Sometimes, as it sounds in your case, a lawyer will use the threat to bully an unrepresented party into accepting an offer. In addition to being poor legal form, it also tends to broadcast a weak position (why make threats if you have the law on your side?).
Incidentally, if your spouse is taking an unreasonable position with regards to moving a child out of state, s/he may actually be putting him/herself at risk of being hit with attorney fees. Also beware that if you intend to seek attorney fees at the conclusion of the case, you *must* file something prior to trial that indicates that you intend to do so. Presumably your lawyer has done this already. Best of luck!
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