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Attorneys' Fees Implications

Attorneys’ Fees Implications of Post Separation Support and Alimony Claims

In Divorce cases, the issue of recovering attorneys’ fees is often at issue. This is to say that, in some instances, one party can be required to reimburse the other party for their attorneys’ fees incurred in pursuing particular claims. This is contrary to the general rule in the United States regarding the recovery of attorneys’ fees. Generally, in the United States, each party is going to be required to pay their own attorneys’ fees regardless of who wins or loses the case. However, in Divorce cases in North Carolina, this dynamic is shifted dramatically for Post Separation Support PSS and Alimony cases.

North Carolina law provides for the recovery of attorneys’ fees in PSS and Alimony claims. Pursuant to North Carolina General Statutes § 50-16.4 “[a]t any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, or post separation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony.” This rule can have dramatic implications for how PSS and Alimony cases are handled.

From the side of the prospective “supporting spouse,” one will typically want to try to implement strategies aimed at minimizing or eliminating exposure for a potential attorneys’ fee award to the dependent spouse. Every case is different and these strategies should be discussed in detail with your Charlotte Divorce and Alimony lawyer.

On the other side of the coin, a prospective “dependent spouse” will likely have a better chance at securing a lawyer to represent them if that lawyer knows that they may be able to recover their attorneys’ fees from the supporting spouse. In some cases, after separation the dependent spouse will be cut off from marital funds by the supporting spouse. Not surprisingly, this can make it difficult for the dependent spouse to retain a lawyer to represent them in their Divorce, PSS and Alimony case. The ability for the Court to be able to award attorneys’ fees to the dependent spouse can level this playing field. Speak with your Charlotte Divorce lawyer about how this can impact your case.

A claim for PSS can generally be heard by the Family Court in Mecklenburg County within four to eight weeks after filing the Complaint for PSS. At this hearing, the Court will consider the relative monthly income and reasonable needs and expenses of both parties. Upon an award of PSS, the Court will be empowered to award attorneys’ fees to the dependent spouse. These fees are typically submitted to the Court through the filing of an Affidavit of Attorneys’ Fees signed and filed by the PSS and Alimony lawyer for the dependent spouse. The Court is empowered to consider the issue of attorneys’ fees at the time of the PSS hearing and to make an award of attorneys’ fees at that same time.

Alternatively, the Court may allow for a hearing on the issue of attorneys’ fees after the hearing on the PSS claim. 26th Judicial District Family Court Division Local Rules of Domestic Court Rule 15 reads: “In all cases which an attorney seeks an award of fees, the attorney shall file an appropriate affidavit at the time the case is called for trial. In its discretion, the Court may allow hearing of attorney fee claims during the trial of the underlying matter or promptly thereafter. The moving Party is responsible for securing a hearing date from the Family Court Administrator for any remaining attorney fee claim within the allotted time. Hearings on attorney fee claims may occur at the hearing of the underlying claim or at a later date.”

The same holds true for claims for attorneys’ fees associated with Alimony claims. The Court can consider a dependent spouse’s claim for attorneys’ fees at the time of the Alimony trial. Alternatively, the Court can provide for a subsequent hearing pursuant to Local Rule 15.