A profound change in the law for family law cases in Georgia has quietly occurred. This change is applicable to both contempt cases and modification cases after divorce. It materially impacts the award of attorney’s fees in contempt or modification cases, which often ends up being much more important that the actual substantive issue underlying the contempt or modification.
Despite this change in law, given habit and practice over decades of time, most judges and attorneys are still not up to speed on this change in law. This results in awards of attorney’s fees no longer supported under Georgia law and settlement agreements that either waive away the rights to attorneys fees in subsequent contempt or modifications cases, or fail to protect a party from future liability in regard.
The relevant case from The Georgia Court of Appeals, is Dovel v. Dovel, 834 S.E.2d 918, which clarified a rule (that almost everyone had taken for granted not to be the rule up until then) that under Georgia statute O.C.G.A. 19-6-2 a court may award a party attorney’s fees in a contempt or child support or child custody modification case based on either (1) disparity of income between the parties, or (2) being found in willful contempt of court, or (3) prevailing in the matter.
The Appellate Court in Dovel held however that an award of attorney’s fees under Georgia law is considered a form of alimony, see Vakharwala v. Vakharwala, 799 S.E.2d 197 (2017) (a case in which I represented the prevailing party). With the profound part being that since attorney’s fees is alimony, if you waive alimony in your divorce settlement agreement then you have waived the right to attorney’s fees under O.C.G.A. 19-6-2 as well.
There is template, boilerplate language used in Georgia divorce settlement agreements repeatedly. One such template is the waiver of alimony provision. It is put into settlement agreements with no thought regarding a future award of attorney’s fees. Now, when drafting this provision an attorney needs to take into account this change in law. Further, when representing a client in a future contempt or modification case, and an award of attorney’s fees is requested, an attorney needs to analyze if a party has waived the rights to fees to begin with.
An example is in a current case I am handling. My client began the case representing himself. Opposing attorney demanded an award of attorney’s fees. My client had no idea how to handle his defense (as they were requesting $14,000) and the judge was ready to issue the order to award this amount against him. He retained us, and we brought in the defense of Dovel, as his marital settlement agreement indeed did waive each party’s right to alimony from the other.
The result: the judge after review decided that she did not have the power to award these fees to the wife due to the Dovel decision and the waiver of alimony in the marital settlement agreement. This alone saved the client $14,000 much less the improved result we were able to obtain on the underlying case.
The law is complex. Knowledge is power. It pays to discuss your case with experienced counsel who is familiar with the nuances of the law.
Scott Shaw is founder and principal of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today by calling us at 770-594-8309, texting at 678-522-4799, or emailing at [email protected].