Q: If I file for a custody modification. Will I be responsible for ex-wife’s attorney and my own?
My ex-wife received primary custody of my son during our divorce 9 years . Then,last year, she indicated she was getting married and leaving the jurisdiction. My son indicated he did not want to go and I didn’t agree for him to leave either. She left anyway and my son stayed with me. Although she has primary custody, he’s been living with me for the last 2 years. I filed for a custody modification. She’s calling leaving messages saying I will be responsible for paying for her attorney. Is this true?
A:
Tennessee follows the American rule for attorney fees. This means that ordinarily each side is responsible for paying their own attorney. There are only 2 exceptions to this rule: contractual basis or statutory basis. I am unaware of a statutory basis for fees in custody modification cases. Your MDA from the divorce is likely a contract. Without reading it and any other contracts you may have with your ex, I cannot answer this question definitively. Most MDAs I have reviewed include a provision for attorney's fees for the prevailing party. If that provision applies then you would be required to pay her attorney's fees only if the court rules that she is the prevailing party.
I recommend you consult with an experienced family law attorney to better understand this and other relevant areas of the law in your attempt to modify your son's custody. Good luck!
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