Attorney Fees in a Mississippi divorce case—who pays?
Who pays the attorney in Mississippi divorces?
In general, each party is responsible for paying their own attorney in a Mississippi divorce. However, the chancellor has broad discretion in deciding whether to award attorney fees to one party. The chancellor can award attorneys fees in those instances where the party seeking fees is unable to pay and there is a financial disparity between the two parties. What constitutes an inability to pay is a broad question dependent on the facts of each case.
In those instances where an award of attorney’s fees is justified in a divorce, the 1982 Mississippi Supreme Court decision of McKee v. McKee, 418 So.2d 764 (Miss. 1982) controls. In McKee, the Mississippi Supreme Court held that the trial court shall apply the following factors to determine if attorney fees should be awarded to a party:
the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.
McKee at 767. This same analysis has been applied to actions involving child custody, child support, and contempt actions in divorce cases, but the analysis is different in a paternity action. In a paternity action, Mississippi Code Sec. 93-9-45, states:
If the court makes an order of filiation, declaring paternity and for the support and maintenance, and education of the child, court costs, including the cost of the legal services of the attorney representing the petitioner … and other costs shall be taxed against the defendant.
In Dobbins v. Coleman, the Mississippi Supreme Court addressed this apparent conflict between the statute, which required the award of attorney fees, and the McKee decision, which required courts to apply factors before awarding attorney fees. The Court held that in a paternity action, the court is not required to apply the McKee factors given the statute. Rather, the only analysis is whether the attorney fees are “reasonable.” If it is not a paternity action, then the McKee factors apply. Dobbins v. Coleman, 930 So.2d 1246 (Miss. 2006).
In a Mississippi divorce, parties usually pay their own attorney unless one party is unable to pay and there is a financial disparity between the two parties. If you are preparing to go through a divorce and concerned about who is going to pay your attorney, discuss the matter with an attorney who can review your situation and advise you regarding your chances of recovering attorney fees.
