Payment of Attorney Fees in Family Court; One Attorney’s Thoughts

Imposition of a “Loser Pays” System Would Reduce the Family Court Docket

By M. J. Goodwin



I have long been an advocate of a “loser pays” system in Family Court.  In essence, such a system would punish those who bring meritless cases by requiring them to pay the other party’s reasonable attorney fees in defending the action.  Similarly, it would encourage settlements as a party who was openly committing adultery, for example, would be less likely to just take a chance and see what the judge rules.  The party would know that the judge would likely rule against their interests and award attorney fees to boot.


Unfortunately, the Courts have not clearly established a “loser pays” system, yet.  However, a recent decision does move us closer to “loser pays.” In Brown v. Brown, Opinion Number 5236, the South Carolina Court Appeals ruled that the prevailing party, the father in this case, should not have to pay the mother’s $5000 attorney fee bill.  The rationale was that the father won and that the other factors considered in determining attorney fees did not weigh heavily in favor of either party.  The text of Brown can be found here:,41&case=12620810856063376964&scilh=0



The Court considered:


“In determining whether to award attorney’s fees, the family court should consider the following: (1) the party’s ability to pay his/her own attorney’s fee; (2) the beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; and (4) the effect of the attorney’s fees on each party’s standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). In addition to the E.D.M. factors, “[t]his court has previously held when parties fail to cooperate and their behavior prolongs proceedings, this is a basis for holding them responsible for attorney’s fees.” Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. App. 2010).”


The best counsel that I can give my clients to be sure to avoid an order requiring payment of the other party’s attorney fees and costs is to be reasonable in settlement negotiation.  If a client has very few “deal breakers” in mind, the litigation can usually be settled and this will save the client a tremendous amount of money and stress.


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