Attorney fees are always a big topic in family law. Nobody wants to pay ’em, but everyone wants to get ’em, including attorneys!

In Mississippi, the standard to recover attorney fees is based upon the client’s ability to pay.  If the client has the ability to pay attorney fees they will NOT recover attorney fees in the typical divorce.  Upon a showing of inability to pay a client may recover reasonable attorney fees.  This holds true even if they are the client “at fault.”  What?  Yes.  It’s about the ability to pay, nothing else, usually.

If a client can demonstrate an inability to pay, the Court conducts an analysis of the “McKee Factors” to determine the reasonableness of the attorney fees.  McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), lists the following factors that the Court considers before an award of attorney fees is made.

• Parties’ relative financial ability
• Skill and standing of the attorney
• Novelty and difficulty of the issues
• Degree of responsibility involved in management of the case
• Time and labor
• Usual and customary charge in the community
• Preclusion of other employment as a result of accepting the case

The client and client’s attorney would both testify regarding these factors, the attorney more so.  This is one of the few instances where an attorney is allowed to represent a party and be a “witness” in the same matter.  After the Court has determined inability to pay, the Court looks as the above factors and the evidence/testimony offered regarding McKee and makes a determination regarding attorney fees.  The Court has broad discretion in awarding attorney fees and the award is routinely less than the actual amount paid or owed.

Additionally, the standard is different for contempt, fraud instances and if a party’s actions caused the fees to be higher unreasonably.  In contempt the Court may award fees upon a finding of contempt and the Court can sanction a party for misconduct, including an award of attorney fees against the wrongdoer.

So will you recover your attorney fees?  You might, but then again you might not and if you do you may not get what you actually paid, or what you actually owe.  Also, most attorneys will have already have been paid, so then, how do you show inability to pay?  Promissory notes and loans.  Document it if you borrowed the monies and have the lender prepared to testify it’s a legitimate loan, even if it’s your parents.

Lastly,  just because you have the present inability to pay does not mean you are guaranteed recovery of fees.  If the Court awards you enough assets through your case, you may not recover attorney fees because the Court figures you have enough to pay them now.

Matthew Thompson is a family law attorney in Mississippi and is upfront with his clients about attorney fees, expenses and the likelihood of recovering those fees.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.