One of my favorite arguments before the family court and the appellate courts is that fault is not a consideration in attorney’s fees. I support this argument on two primary authorities: First, in E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992), the Supreme Court held “In determining whether an attorney’s fee should be awarded, the following factors should be considered: (1) the party’s ability to pay his/her own attorney’s fee; (2) beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; (4) effect of the attorney’s fee on each party’s standard of living.” Note that fault is not listed as a factor.
Second, the court of appeals, in reversing the family court held “A party’s fault in causing a divorce, however, is not a factor to be considered when awarding attorney’s fees.” Doe v. Doe, 370 S.C. 206, 219, 634 S.E.2d 51, 58 (Ct. App. 2006). This is clear, concise, and controlling.
Updating my research for my form book, Separation and Divorce in South Carolina, Forms and Comments, I read S. C. Code Ann. Section 20-3-130(H). The court, from time to time after considering the financial resources and marital fault of both parties, may order one party to pay a reasonable amount to the other for attorney fees, expert fees, investigation fees, costs, and suit money incurred in maintaining an action for divorce from the bonds of matrimony, as well as in actions for separate maintenance and support, including sums for services rendered and costs incurred before the commencement of the proceeding and after entry of judgment, pendente lite and permanently.” (Emphasis added)
I am confused. May a family court judge properly consider marital fault in deciding whether to award attorney’s fees? I am not asking what they do in practice; I am asking what they may properly do.
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