Tag Archives: marital settlement agreement

Prevailing Party Fee Provisions – What if both parties prevail on different issues?

A recent blog discussed the widespread usage of prevailing party fees provisions in martial settlement agreements. A prevailing party fees provision addresses which party will be required to pay their own and the other party’s attorney’s fees if further litigation occurs post-divorce. The fees paying party will be the one who loses on the significant issues in the post-divorce litigation. The prevailing party on the significant issues will not be responsible for paying any fees even if their own income and assets far exceed the income and assets of the losing party.

Sometimes, however, the post-divorce litigation covers two or more significant issues, for example, child custody modification and alimony modification. What happens when the parties have a marital settlement agreement with a prevailing party fees provision if one party prevails on the child custody issue and the other party prevails on the alimony modification issue?

The simple answer is that each prevailing party on a significant issue is entitled to have the losing party pay their attorney’s fees related to that issue. If the attorney’s fees incurred by each prevailing party can be neatly allocated to each issue in the litigation, the matter ends there. But if you are a veteran of a litigated divorce, you already know that such tidy allocations rarely occur in family law litigation.

Often the family law court will decide that all of the litigated issues are so intertwined that it is not possible to separate out the fees incurred for particular issues. When this happens, the court may award each prevailing party all of their fees for litigating the intertwined issues, … not exactly the “no fees” outcome hoped for by each prevailing party, but certainly better than having to pay all of the fees for both parties if you lost on all significant issues.

Attorney’s fees awards in family law cases can be difficult to navigate and win in both divorce and post-divorce proceedings. The Law Office of Jeanne Coleman works closely with clients in the Tampa Bay community to ensure that fees awards are fully considered at the outset of litigation and properly presented to the court. Jeanne Coleman, Esq. has more than twenty-five years of experience in family law, dependency, and social security disability litigation. Call today for a consultation appointment.