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A Word from Scott Shaw: Child Support, Attorney’s Fees, and Modification

There have been some big changes in the Georgia child support laws. The state completely re-wrote laws that removed use of a percentage of income and created an income-share system. Child support owed is now calculated from the income of both parents, not just the parent paying child support.  Overall, it’s created a more fair system and proves more reasonable amounts of child support without the possibility of bankrupting the paying party.

But there’s another aspect of the new child support law that specifically allows for an award of attorney’s fees to the prevailing party.  This isn’t something that’s been discussed much, but it’s a massive change in the law for many practical reasons.

Discretionary Award of Attorney’s Fees to Prevailing Party in Child Support Modifications 

Under Georgia law, attorney’s fees are only awardable to one party if it’s pursuant to the statute.  Before this new law, there was no such statute for child support or child support modification.  However, Georgia’s new law does authorize an award of attorney’s fees in a child support action to the prevailing party.  

The first question you may ask in terms of child support or child support modification is “who is the prevailing party?”  That may not be as simple as it sounds.  

Let’s say you have a child support order for $300 per month that was made 5 years ago.  But the paying parent’s income has more than doubled since then. Of course, child support would increase.  So a modification says the new child support should be $600 per month but the receiving parent indicates it should be $1500 per month.  The paying parent then contests the issue in court.  In the end, the court sets child support at $600 per month, not $1500.  Who prevailed?  

One appellate court decision indicates the party who demanded an unreasonable amount of money (ie: the $1500 per month) is the prevailing party, though objectively this parent lost. 

Fortunately, for most cases, the award of attorney’s fees is discretionary with the court. The court is unlikely to give attorney’s fees to anyone who made an unreasonable request.

It’s arguable that the parent who really won the case, with the amount set at $600 a month, should be entitled to attorney’s fees for winning the child support modification case.  And this is still a possibility.  With the law being so new, what “prevailing” party means for child support purposes is still in flux and subject to arguments from good attorneys.   

Mandatory Award of Child Support

There are certain circumstances where an award of attorney’s fees in a child support case is mandatory.  If the prevailing party in the child support modification case involved a parent who was not complying with their parenting time/visitation time and had the child for more time than is indicated in the parenting plan.  In such cases, the court must award attorney’s fees if the prevailing party is the custodial parent.  

This makes the determination of who the prevailing party is even more critical.  An award of attorney’s fees is a significant thing.

Award of Attorney’s Fees in Child Support Cases Can Change the Strategy

The new child support law that authorizes the court to award attorney’s fees to the prevailing or winning party in a child support modification is intended to reduce child support litigation and encourage settlement.  If a parent makes an unreasonable claim and loses, they may need to pay the other party’s attorney’s fees.  This should be a positive thing to hold parties to more reasonable behavior in child support cases.  

But the question surrounding the definition of the prevailing party in a child support case, and when an award of attorney’s fees should be discretionary or mandatory, is still undecided.  Each case must be examined based on the facts to determine risk-benefit and what to ask for in your child support modification case in a Georgia court.

If you have any questions, we’d be happy to speak with you at Shaw Law Firm.  We are Atlanta, Georgia Divorce and Child Custody Lawyers. We’ve been doing this since 1995 and we can help.