By Rock Rocheleau and Paulina Andrade
Family courts, like other courts, follow the “American rule” on attorney fees. This means (most of the time) each spouse will pay their own attorney fees. However, there are unique aspects in requesting and receiving attorney fees in family court. For instance, if Husband pays attorney fees from their joint accounts, didn’t Wife pay for them, too? How about when Husband controls the parties’ money, which can hinder Wife from hiring an attorney in the first place?
Just like in civil cases, family court rules allow for the awarding of attorney fees in family court when a motion is filed without first attempting to resolve the issue with the other side. See EDCR 5.501(b). An illustrative example involves a scenario where a party files a motion for custody modification without first consulting the other party to determine if there is mutual agreement. In this case, the other party may indeed agree to the proposed modification, rendering the motion unnecessary. If the court finds that the motion was filed without attempts to resolve the issue with the other party, it may award attorney fees to the responding party for the time and expense incurred in addressing the motion.
The court can also sanction a party who files an obviously unwarranted motion, fails to appear or prepare for a hearing, does not comply with a prior court order, or otherwise multiplies the proceedings. See EDCR 5.219. Motions to modify custody are not subject to issue preclusion rules because the courts do not want to deter a parent from filing a motion that might have merit. However, if multiple motions without merit are filed by one parent, the court can award attorney fees to stop a parent from filing motion after motion, when their purpose is simply to harass the other parent.
A requirement unique to family court is that parties must file a Financial Disclosure Form (FDF) when requesting attorney fees.
A requirement unique to family court is that parties must file a Financial Disclosure Form (FDF) when requesting attorney fees. This requirement distinguishes family court proceedings from civil cases because the court must consider each party’s financial situation before deciding on attorney fees. Additionally, the court has the authority to award attorney fees if a party fails to file an FDF, emphasizing the importance of this unique requirement.
The landmark case of Sargeant v. Sargeant highlights the court’s ability to award attorney fees to balance the power dynamics in a divorce, even without the court finding a party was acting unreasonable or failed to comply with other rules of procedure. This is particularly relevant when there is a significant disparity in the financial resources of the parties, a common theme in family court. The purpose of Sargeant fees is to allow the disadvantaged party to meet the opposing party in the court room on equal footing—without jeopardizing their financial position.
However, in situations where the parties are not married, (think custody cases!) the principles established in Sargeant do not apply. Regardless, the court still has statutory discretion to award fees, both in custody cases or child support enforcement cases, after considering the parties’ incomes.See NRS 125C.250 & NRS 125.180(1). These statutes are case-type specific and do not require findings of “unreasonableness.”
The allocation of attorney fees can become complex, particularly when spouses accumulate fees on a joint credit card or pay them from a separate account. While community debts are typically divided equally between the parties, attorney fees are not always considered community debts. Judges have discretion in determining how these fees are allocated, and they must be vigilant to avoid a “double dip” scenario. For example, if Husband pays attorney fees from a separate bank account that is not divided, and the credit card balances (which include attorney fees) are divided equally, Wife effectively benefits by having half of her fees paid without contributing to Husband’s fees. This creates an imbalance that attorneys (and judges) must carefully look for.
Judges in family court have significant discretion when it comes to awarding or denying attorney fees. While they are required to make findings when awarding fees, they are not obliged to explain their reasoning when denying them. See Henry Prod. Inc. v. Tarmu, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998).
In our opinion, family court does not easily award attorney fees because awarding fees can “fan the flames” between the divorcing spouses. This, in turn, can intensify and prolong the divorce or custody case. Also, most issues brought in family court are not “clearly” frivolous. It can be challenging for a judge to find enough facts to support an order for attorney fees in a basic divorce or simple custody modification. Lastly, arguments surrounding attorney fees can consume valuable court time and detract from the primary issues at hand. Therefore, a good practice tip for requesting attorney fees in family court is “don’t count on them,” and, when asking for attorney fees, present concise and compelling arguments on why the issue was frivolous or brought with the intention to harass the other.
About the authors
Rock Rocheleau is the managing attorney at Right Lawyers. He received his law degree from UNLV Boyd School of Law.
Paulina Andrade is an attorney with Right Lawyers, representing clients with divorce and custody matters. She received her law degree from UNLV Boyd School of Law.
About the article
This article was originally published in the Communiqué (Mar. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-mar-2025/. The printed magazine was mailed to CCBA members the week of March 4, 2025.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
© 2025 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.