Are Attorney’s Fees Available To Enforce The Terms Of My Judgment?

Attorney’s fees may be sought under a variety of reasons in any action under the Family Law Act. This article discusses some options for fees when seeking to enforce your judgment of dissolution.

The easiest way to seek fees is when you are a non-offending party (you have complied with the judgment) and seeking the other party to perform what was expected of them by the terms of the judgment. Many times, a judgment will contain a provision relating to attorney’s fees for enforcement and might indicate, “In the event that either party brings any action or proceeding to enforce any provision contained in this judgment the prevailing party shall be entitled to receive from the other such reasonable attorney’s fees and other reasonably necessary costs incident thereto as will be fixed by the court regardless of the need and or ability of the parties to pay same.” A provision, such as this, is commonly referred to as a “prevailing party” clause and is enforced just as it would be in any contract that had an attorney’s fee provision.

A “prevailing party” clause is not something you would expect to find in a judgment after trial, and arises only in negotiated agreements in a divorce. Sometimes a lower earner or the spouse with less economic strength may object to such a provision as it could expose them to fees that they may not otherwise be exposed to.

Even in instances where there is no prevailing party clause, an award of fees may be called for by statute, such as in actions to enforce support orders, or breaches of the judgment that rise to a breach of fiduciary duty or bad faith conduct. Any time an action needs to be brought to enforce a judgment, thought should be given to the recovery of the fees and costs made necessary by the offending party’s non-compliance. Likewise, a party who is not following the terms of a judgment should expect the court not only to enforce the order, but further order the payment of attorney’s fees and costs incurred by the non-offending party.