Awarding Attorney’s Fees in Mississippi Divorces

One of the most frequently asked questions I have received in my years of divorce practice is “how much is this divorce going to cost me?” This is a fair question, but a tough one to answer. In Mississippi, divorce is neither easy nor free. While I often find myself going to great lengths to save my client’s time and money in divorce cases, the financial impact of divorce is always present. Because divorces can cause a serious financial burden for some individuals, divorce costs should be a key factor when considering whether to divorce and the attorney you use. In fact, one of the most important divorce costs in any divorce case in Mississippi will be attorney’s fees. One would generally think that each party to a divorce is responsible for paying his or her respective attorney out of their own pocket. But think again, because courts are able to award one spouse or the other reasonable attorney’s fees in certain cases.

In general, an award of attorney’s fees in a Mississippi divorce case is left to the discretion of the trial court. Cheatham v. Cheatham, 537 So. 2d 435, 440 (Miss. 1988). A chancellor presiding over the divorce case in Mississippi has the inherent authority to grant or deny attorney’s fees to one party or the other. But to be clear, an award of attorney’s fees is not automatic–one party must actually request an award of attorney’s fees and must prove that he or she is unable to pay his or her attorney’s fees. Gambrell v. Gambrell, 650 So. 2d 517, 521 (Miss. 1995); Evans v. Evans, 75 So. 3d 1083, 1089 (Miss. Ct. App. 2011) (“[a]ttorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees.”). And if a court elects to award attorney’s fees, “the allowance of attorneys fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary.” McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). So, when considering a request for attorney’s fees in divorce cases, Mississippi courts generally must answer two foundational questions: (1) whether attorney’s fees should be awarded at all, and if so, (2) how much is appropriate.

After the court determines that a party is entitled to attorney’s fees because of an inability to pay, then it must consider the amount that should be awarded. Mississippi courts apply the McKee factors when determining the “reasonable” amount of attorney’s fees that a party is entitled to, or vice versa, the amount the other party should be required to pay. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Under McKee, our courts consider the following:

[1] the relative financial ability of the parties, [2] the skill and standing of the attorney employed, [3] the nature of the case and novelty and difficulty of the questions at issue, as well as [4] the degree of responsibility involved in the management of the cause, [5] the time and labor required, the usual and customary charge in the community, and [6] the preclusion of other employment by the attorney due to the acceptance of the case.

Id. Evident from McKee is that consideration of the relative worth of the parties, standing alone, is insufficient. Wells v. Wells, 800 So. 2d 1239, 1246 (Miss. Ct. App. 2001).

In sum, if a party is able to pay his or her attorney, then he or she cannot be awarded attorney’s fees in divorce cases. But if a party is not able to do so and the court does award attorney’s fees, such an award must reasonable under McKee; otherwise a party can effectively challenge or appeal the award in another court. Nonetheless, a person contemplating divorce should not overlook the costs associated with Mississippi divorces, especially potential attorney’s fees. Seeking the help of an experienced Mississippi divorce attorney is always beneficial when contemplating divorce. If you or a friend needs professional assistance in a divorce or any other family law matter, please call the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.